Tue, 03 Mar 2015 15:50:23 GMThttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert
62058f92-fba1-4d47-8718-c4ce51331b44Tue, 03 Mar 2015 00:00:00 GMTSupreme Court Requires "Active State Supervision" over State Regulatory Agency Comprised of Active Market Participantshttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/Supreme-Court-Requires-Active-State-Supervision-over-State-Regulatory-Agency-Comprised-of-Active-Market-Participants
On February 25, the Supreme Court delivered a 6-3 decision clarifying that state regulatory entities do not enjoy automatic antitrust immunity when they are composed primarily of active market participants.&nbsp;In doing so, the Court raises the specter of greater antitrust scrutiny over actions taken by certain state regulatory and licensing bodies, such as professional regulatory boards, and possibly also government entities that themselves participate in the marketplace, such as government owned health care facilities or utilities. The case at issue, North Carolina State Board of Dental Examiners v. Federal Trade Commission, 574 U.S. ___ (2015) (slip opinion), addressed whether the state-action doctrine immunized activity by the North Carolina Board of Dental Examiners (the "Board"), which sent cease-and-desist letters "to nondentist teeth whitening service providers and product manufacturers."&nbsp; Id. at *3. In ruling that it did not, the ...a970f15d-4252-46e3-b8b3-e504f772e4bcFri, 13 Feb 2015 00:00:00 GMTQualcomm's $975 Million China Settlement: Is NDRC Righting Antitrust Wrongs, or Building Industrial Policy?http://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/Qualcomms-975-Million-China-Settlement-Is-NDRC-Righting-Antitrust-Wrongs-or-Building-Industrial-Policy
This week, one of China's three antitrust authorities, the National Development and Reform Commission (NDRC), announced a settlement with Qualcomm, Inc., closing its 14-month investigation into Qualcomm's licensing practices under China's Anti-Monopoly Law (AML).&nbsp;The center piece of the settlement is an eye-popping $975 million fine, which is the largest corporate penalty to date in China, and the third largest "abuse of dominance/monopolization" fine ever imposed by any antitrust agency worldwide.&nbsp;Despite the size of the fine, the settlement has been reported as a relative win for Qualcomm.&nbsp;Earlier reports suggested NDRC was seeking an even larger fine, and the behavioral aspects of the settlement, while groundbreaking, are not expected to fundamentally alter Qualcomm's business model.&nbsp;Indeed, it is the behavioral aspects of the settlement that may hold broader lessons for industry participants and companies doing business in and with China.
...612c79c3-9688-49ae-82cd-7c3d0fd8aab7Thu, 05 Feb 2015 00:00:00 GMTJustice Department Will Not Challenge Revised IEEE Standards Patent Policyhttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/Justice-Department-Will-Not-Challenge-Revised-IEEE-Standards-Patent-Policy
In a February 2, 2015, business review letter (the Letter), the U.S. Department of Justice informed the Institute of Electrical and Electronics Engineers (IEEE) that it has no present intention to challenge IEEE's proposed Patent Policy Update (the Update), which would change IEEE's policies regarding Standards Essential Patents (SEPs).&nbsp;The Update, if implemented, will impose one mandatory, and three suggested, changes to IEEE's SEP licensing policies for participants submitting "Letters of Assurance" (LOAs) to IEEE, generally eroding SEP holders' interests in favor of implementers' interests.&nbsp; Indeed, the European Commission reportedly issued a response statement calling for "careful balance between guaranteeing full access to standards at the same time as ensuring appropriate remuneration for intellectual property."&nbsp;DOJ acknowledged that the IEEE proposed Update was controversial, and that IEEE members claimed that the process was hijacked by implementers seeking changes at the expense ...e2143c9d-9814-46d2-a16f-ea766e1e4c5eThu, 15 Jan 2015 00:00:00 GMTFTC Announces New HSR and Section 8 Thresholdshttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/FTC-Announces-New-HSR-and-Section-8-Thresholds-2015
The Federal Trade Commission announced today that it will increase the jurisdictional thresholds applicable to both the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the HSR Act) and Section 8 of the Clayton Act. These dollar thresholds are indexed annually based on changes in the U.S. gross national product.
The HSR Act requires that certain large transactions be notified prior to their consummation. This year, the minimum "size-of-transaction" threshold for reporting mergers and acquisitions will increase from $75.9 million to $76.3 million.&nbsp;In addition, the "size-of-person" and filing fee thresholds will also increase.&nbsp;These revisions will become effective thirty days after their publication in the Federal Register.
The Commission also issued revised thresholds relating to the prohibition of certain interlocking directorates under Section 8 of the Clayton Act. These revisions will take effect immediately upon their publication ...130ce8c5-632c-4bf5-b77c-9c6b85affce9Wed, 17 Dec 2014 00:00:00 GMTGenuine Product Improvement Not Monopolization, California Jury Finds in Closely Watched Apple iPod Trialhttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/Genuine-Product-Improvement-Not-Monopolization-California-Jury-Finds-in-Closely-Watched-Apple-iPod-Trial
After nine years of litigation and a two-week trial, a California federal jury took all of three hours to find that an Apple iTunes software update in 2006 was a genuine product improvement, and therefore not an antitrust violation.&nbsp;Technology firms have long watched the case for guidance on the extent to which the antitrust laws require manufacturers to make their products interoperable with downstream content provided by third parties in the face of countervailing security and data rights concerns. Here, the jury found that interoperability was not mandatory.&nbsp;
The plaintiffs&mdash;purporting to represent a class of at least eight million Apple iPod owners&mdash;alleged that an Apple software update that prevented iPod users from uploading songs from third-party sellers onto their devices, had enabled Apple to monopolize digital music. The trial gained national attention outside antitrust circles when ...ad0420a2-c1e6-4cad-b635-50bf3d6926c0Mon, 17 Nov 2014 00:00:00 GMTCorporate Taxation and EU Competition Law – Are Tax Rulings for Individual Companies Threatened by EU State Aid Law?http://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/Corporate-Taxation-and-EU-Competition-Law-Are-Tax-Rulings-for-Individual-Companies-Threatened-by-EU-State-Aid-Law
At the beginning of November, the International Consortium of Investigative Journalists (ICIJ) disclosed the results of its investigation into corporate taxation in Luxembourg (Leaked Documents Expose Global Companies' Secret Tax Deals in Luxembourg).1 ICIJ claims that billions of Euros in taxes for cash-strapped governments in Europe have been forgone and Luxembourg might have given favorable tax treatment to more than 300 multinational companies. In an unusual move, the new European Commissioner for Competition Margrethe Vestager responded on the same day by issuing a public statement to confirm that the Commission is already investigating whether certain tax rulings adopted by some Member States are in compliance with EU state aid rules. With particular regard to Luxembourg, there are already two EU probes open and they intend to take a close look at the published documents. This could lead to the ...128c959e-3c81-4047-affa-845fc55f3e77Wed, 12 Nov 2014 00:00:00 GMTFTC Invokes "Deception" Authority Under Section 5 to Try to Curb "Patent Troll" Behaviorhttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/FTC-Invokes-Deception-Authority-Under-Section-5-to-Try-to-Curb-Patent-Troll-Behavior
Recent Happenings in APRM
November 2014
New Danger in Delay: FDA Guidance Merits Review of Internal Procedures for Facility Inspections
...30c25067-ad08-41b6-b968-fb87e0d70349Mon, 28 Jul 2014 00:00:00 GMTSolicitations to Collude Are the Worst Type of Invitationhttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/Solicitations-to-Collude-Are-the-Worst-Type-of-Invitation
Inviting your competitor to collude in 2014?&nbsp;Not on the FTC's watch, at least not when the agency has one of the hottest documents in the history of antitrust.
Imagine your business client asked you to review the following email before he sent it:
Hello Phil, Our company name is InstantUPCCodes.com, as you may be aware, we are one of your competitors within the same direct industry that you are in.&nbsp;The reason for this email is because of the constant price changing from multiple vendors within this industry.&nbsp;The 3 main problems are US, YOU, and [Competitor A].1
Now imagine how it must feel to have that email turned over to the FTC.
Last week two internet resellers of universal product code (UPC) barcodes used by retailers for price scanning and inventory purposes settled ...0d19779c-ecea-4d8f-a182-257d5b92ee8cFri, 27 Jun 2014 00:00:00 GMTDOJ and FTC Hold Joint Workshop on Conditional Pricing Practiceshttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/DOJ-and-FTC-Hold-Joint-Workshop-on-Conditional-Pricing-Practices
Low and discounted pricing programs, often involving product bundles and customer loyalty provisions, are a cornerstone of competition for many.&nbsp;Because such programs most often involve pro-competitive behavior and deliver benefits to consumers, they are likely to foster competition, the key goal of the antitrust laws. When implemented by firms with "market power," however, they may result in anticompetitive effects that remain a concern for antitrust enforcers.&nbsp;The issue of distinguishing pro-competitive from anticompetitive "conditional pricing practices" was the subject of a day-long workshop sponsored jointly by the U.S. Department of Justice (DOJ) and Federal Trade Commission (FTC) (together, the "Agencies") on June 23, 2014.
Businesses often offer discounted prices because commitments from customers&mdash;to purchase a particular product or mix of products, or a specified volume or share, or for a certain period of time&mdash;allow the business to ...ed26a98d-c739-48a6-98b3-c3c51d40ef05Sat, 12 Apr 2014 00:00:00 GMTDOJ and FTC State that Antitrust is Not a Roadblock to Cybersecurity Information Sharinghttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/DOJ-and-FTC-State-that-Antitrust-is-Not-a-Roadblock-to-Cybersecurity-Information-Sharing
Recent Happenings in APRM
June 2014
Supreme Court Permits Lanham Act Challenge to Beverage Label Regulated by the FDA
Highlights from ACI's 2014 Consumer Products Regulatory &amp; Litigation Program
...f77e66aa-3b70-4af1-a867-3f6276de9943Thu, 10 Apr 2014 00:00:00 GMTTerrell McSweeny Confirmed as Fifth FTC Commissionerhttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/Terrell-McSweeny-Confirmed-as-Fifth-FTC-Commissioner
In 95-1 vote yesterday, the U.S. Senate confirmed President Obama's nomination of Terrell McSweeny as the fifth commissioner at the Federal Trade Commission (FTC). McSweeny's confirmation&mdash;almost ten months after she was first nominated&mdash;fills the vacancy that was created when former Chairman Jon Leibowitz stepped down in February of 2013.
McSweeny's confirmation is significant in that it restores the Democrat's 3-2 majority on the Commission. McSweeny joins Chairwoman Edith Ramirez and Julie Brill in the majority; Maureen Ohlhausen and Joshua Wright are the two Republican Commissioners. Prior to McSweeny's confirmation, in the case of 2-2 tie, the FTC would decline to intervene.
Prior to her nomination, McSweeny worked with Vice President Biden between 2005 and 2012 in various roles, including as his deputy chief of staff, as counsel on the Senate Judiciary Committee, and as his domestic policy ...0f689a46-18ed-411f-871a-f271319af823Fri, 04 Apr 2014 00:00:00 GMTAntitrust Division Announces First Extradition on Antitrust Chargehttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/Antitrust-Division-Announces-First-Extradition-on-Antitrust-Charge
The Antitrust Division of the U.S. Department of Justice has for the first time successfully extradited a foreign national to stand trial for antitrust crimes in the United States.&nbsp;While the Division has long expressed its intention to enforce antitrust laws against foreign executives &ndash; and has concluded dozens of plea agreements with foreign nationals who submitted to U.S. jurisdiction in exchange for lighter sentences &ndash; this development demonstrates the agency's willingness to pursue extraterritorial enforcement of U.S. antitrust law through litigation.&nbsp;It also shows that increased collaboration with foreign competition authorities &ndash; and increasing criminalization of anticompetitive conduct abroad &ndash; is paying off for the Antitrust Division.
According to a DOJ press release, Romano Pisciotti, an Italian national and former executive with Parker ITR Srl, engaged in bid-rigging, price-fixing, and market allocation for sales of marine hose in ...d913714e-b118-4e9b-90fb-c9d98f57a5a6Mon, 03 Mar 2014 00:00:00 GMTFTC's Unabated Focus on Competition Impacts Health Care Reform and Makes Deals Risky...But Not Impossiblehttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/FTCs-Unabated-Focus-on-Competition-Impacts-Health-Care-Reform-and-Makes-Deals-RiskyBut-Not-Impossible
A Surge in Enforcement Activity
The Affordable Care Act and health care reform have set in motion a broad array of changes. The health care exchanges and an expanded Medicaid program are bringing many new individuals into the health care system, creating potential access issues and questions regarding the provision of high quality and lower cost care.&nbsp;New payment models are being tested, from Accountable Care Organizations and bundled payments, to capitated payments and managed care. These changes are encouraging providers to find new ways to collaborate and integrate so that they can provide coordinated care within their communities.&nbsp;
Yet significant activity by the Federal Trade Commission (FTC) will continue to impact the health care industry and specifically how health care reform will evolve in the future.&nbsp;While the FTC actively investigates hospital and physician mergers, ...680645bf-235f-48a2-9fd4-d427be208cf2Wed, 12 Feb 2014 00:00:00 GMTFTC Decides McWane: Muddy Waters on Tap?http://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/FTC-Decides-McWane-Muddy-Waters-on-Tap
The Federal Trade Commission has issued its much-anticipated decision in the appeal of In the matter of McWane, Inc.&nbsp;Commenters have complained that it brings only limited clarity on the Commission's views on exclusive dealing.&nbsp;But McWane still contains valuable lessons on the importance of contemporaneous evidence to the Commission's analysis of Section Five cases.&nbsp;Given recent Senate Committee reapproval of President Obama's nomination of Terrell McSweeny &ndash; currently DOJ's Chief Counsel for Competition Policy and Intergovernmental Relations &ndash; to round out the Commission, McWane's most interesting insights may be about the Commission's future, rather than its present.
In the decision, the Commission:
Affirmed by a 3-1 majority the Administrative Law Judge's (ALJ) decision faulting McWane's exclusive dealing program for preventing its rival Star Pipe Products, Ltd. from reaching a scale ...c5633c03-cc1c-4abe-bb84-b511036329d0Tue, 04 Feb 2014 00:00:00 GMTFTC Wins Antitrust Challenge to Health System's Acquisition of Physician Practicehttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/FTC-Wins-Antitrust-Challenge-to-Health-Systems-Acquisition-of-Physician-Practice
The potential tension between the antitrust laws and the Affordable Care Act was on full display recently as the Federal Trade Commission successfully blocked a health system's acquisition of an independent physician practice &ndash; the first time the FTC had successfully challenged such a transaction in court.&nbsp;The United States District Court for the District of Idaho handed the FTC its initial win and ordered the immediate unwinding of the transaction and a permanent injunction against the acquisition as violative of Section 7 of the Clayton Act and analogous state competition laws.&nbsp;The decision illustrates that even though consolidation can lead to greater coordination and improved patient care, the FTC and state attorneys general will not hesitate to oppose consolidation in highly concentrated markets that they believe will lead to the reduction in competition, creating the potential for increased prices.&nbsp;Given ...4366e82b-2d05-44c6-9c9e-ffafb858bd5cWed, 29 Jan 2014 00:00:00 GMTNJ Federal Court Says Pharmaceutical Manufacturers Can Agree to Keep Generics Off The Market Without Antitrust Scrutiny If No Cash Changes Handshttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/NJ-Federal-Court-Says-Pharmaceutical-Manufacturers-Can-Agree-to-Keep-Generics-Off-The-Market-Without-Antitrust-Scrutiny-If-No-Cash-Changes-Hands
On January 24, 2014, a New Jersey federal judge dismissed an antitrust class action against GlaxoSmithKline LLC and Teva Pharmaceutical Industries Ltd., reasoning that the recent Supreme Court decision in FTC v. Actavis, which changed the antitrust standards for certain deals between pharmaceutical manufacturers, did not apply because the settlement did not contain a cash payment from the brand-name drug maker to a generic competitor&mdash; a so-called "reverse payment."&nbsp;Indeed, the New Jersey Court held that "Actavis applies only to 'reverse payments' of money."&nbsp;
The decision in In Re Lamictal Direct Purchaser Antitrust Litigation1 suggests that settlement agreements between brand and generic pharmaceutical manufacturers that keep the generic off the market for some period of time prior to expiration of the patents at issue, but which do not involve the payment of cash to the generic, should withstand antitrust scrutiny.&nbsp;The lesson for drug manufacturers seeking to settle patent litigation ...ad38d09c-97ff-4f44-b5ac-2b02d29a9229Tue, 21 Jan 2014 00:00:00 GMTFTC Announces New HSR and Section 8 Thresholdshttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/FTC-Announces-New-HSR-and-Section-8-Thresholds-1412390
The Federal Trade Commission announced last week that it will increase the jurisdictional thresholds applicable to both the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the "HSR Act") and Section 8 of the Clayton Act. These dollar thresholds are indexed annually based on changes in the U.S. gross national product.
The HSR Act requires that certain large transactions be notified prior to their consummation. This year, the minimum "size-of-transaction" threshold for reporting mergers and acquisitions will increase from $70.9 million to $75.9 million. In addition, the "size-of-person" thresholds, the filing fee thresholds and the thresholds applicable to certain exemptions will also increase. These revisions will become effective thirty days after their publication in the Federal Register, which is expected in the next week.
The Commission also issued revised thresholds relating to the prohibition of certain interlocking directorates under Section 8 of the Clayton Act. These revisions will take effect ...9465f4b5-d8f8-402f-ba89-4c4502952617Wed, 18 Dec 2013 00:00:00 GMTEuropean Commission Adopts Merger Procedure Simplification Packagehttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/European-Commission-Adopts-Merger-Procedure-Simplification-Package
On December 5, 2013, the European Commission ("Commission") published a merger procedure simplification package aimed at reducing the administrative burden and thus the costs associated with merger filings at the EU level (Commission press release and memorandum).&nbsp;The measures adopted affect procedural aspects and aim to increase the ratio of cases that can be filed under the so-called simplified procedure from a current 50-60 percent to 60-70 percent.&nbsp;A closer look at the simplification package reveals however that extending the scope of the simplified procedure will not necessarily "cut red tape for businesses" as the Commission claims.&nbsp;Instead, by simultaneously adding further information requirements, the Commission's revisions appear likely to raise the administrative bar for merger notifications.&nbsp;In practice, whether unproblematic mergers can be cleared quickly and cost efficiently will still largely depend on the case team's willingness to accept derogations from the regulation's standard data obligations.
Background
Companies are frequently ...128b821b-c0e0-4698-966b-7c6086c5347dFri, 13 Dec 2013 00:00:00 GMTPatent Troll Successfully Repleads Attack on Patent Aggregator RPXhttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/Patent-Troll-Successfully-Repleads-Attack-on-Patent-Aggregator-RPX
On December 3, 2013, the Northern District of California refused to dismiss any of the claims brought by Cascades Computer Innovation LLC (Cascades) in its amended complaint.&nbsp;Cascades, an NPE and alleged patent troll, sued RPX Corporation (RPX), a patent aggregator and so-called "anti-troll," and several of its members, alleging that the defendants engaged in a conspiracy to lower pricing for Cascades' patent licenses by monopsonizing the market.&nbsp;This decision followed the court's January 2013 decision dismissing Cascades' original complaint, which the court described as "generic pleading."1
RPX is also an NPE.&nbsp;But, according to RPX, rather than acquiring patents for the purpose of asserting them against operating companies, it purchases patents on behalf of its operating company members, and then licenses the technology to all of its members. RPX has been characterized as an "anti-troll" because it aims to neutralize trolls by providing its members with a "broad-based defense" and enhanced ...fed6aa90-1ba6-4ffd-930b-9df59310c56eMon, 11 Nov 2013 00:00:00 GMTFTC Finalizes New HSR Rules for Transfer of Pharmaceutical Industry Patent Rightshttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/FTC-Finalizes-New-HSR-Rules-for-Transfer-of-Pharmaceutical-Industry-Patent-Rights
On November 6, 2013, the FTC issued final HSR rules clarifying when a transfer of rights to a patent, or part of a patent, in the pharmaceutical industry may be reportable under the HSR Act.&nbsp;
The FTC has long considered the acquisition of certain exclusive patent rights to constitute the acquisition of an asset, potentially subject to premerger notification.&nbsp;Historically, the FTC applied a "make, use and sell" test, i.e., if the acquired patent rights provided the exclusive right to make, use and sell the patented drug &ndash; to the exclusion of all others &ndash; the transaction was potentially reportable.&nbsp;But the FTC recently determined that the "make, use and sell" test no longer fits the evolving structure of exclusive patent license transfers.
The new rules replace the "make, use and sell" test previously used by the FTC with a test that asks whether "all commercially significant rights to ...07251ae6-26b2-4b4d-b379-7902d14235a1Fri, 27 Sep 2013 00:00:00 GMTFederal Trade Commission Votes to Conduct Study on Patent Assertion Entitieshttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/Federal-Trade-Commission-Votes-to-Conduct-Study-on-Patent-Assertion-Entities
The FTC announced on September 27 that after a unanimous vote, the Commissioners have decided to launch a study of patent assertion entities (PAEs) and their effect on innovation and competition. The agency has long indicated interest in this issue. The study, which will be conducted pursuant to Section 6(b) of the FTC Act, will allow the FTC to issue compulsory process orders to gather information from PAEs, as well as from other companies that operate in the wireless communications sector.
PAEs have lately garnered scrutiny from the Obama Administration, Congress, and private litigants, as described in more depth here.&nbsp;Their effect on competition and innovation is, however, difficult to measure, because details about licensing transactions are often confidential. But the Commission has the authority to collect non-public information, such as licensing agreements and cost and revenue data. As a result, the study is expected to generate a much richer ...c17f850e-18ee-42c7-8392-64320e3cdc10Mon, 29 Jul 2013 00:00:00 GMTEuropean Antitrust Developments - April - July 2013http://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/European-Antitrust-Developments-April-July-2013
Mergers
1) European Commission, EU Merger Regulation reform (20 June 2013) &ndash; the Commission is consulting on various proposed changes to the EU Merger Regulation (EUMR).&nbsp;The key changes concern: (i) extending jurisdiction under the EUMR to acquisitions of non-controlling minority shareholdings, (ii) reforming rules on the transfer of cases between national authorities and the Commission, and (iii) excluding joint ventures located and operating outside the European Economic Area (EEA) from the scope of the EUMR. Press release.
2) Germany, REWE/Wasgau Food (29 April 2013) &ndash; the Bundeskartellamt cleared the acquisition of a 51 percent stake in Wasgau Food by the German supermarket group REWE under its merger control procedures, while at the same time opening an investigation into coordination concerns arising from the transaction. The coordination concerns arose because REWE's competitor, EDEKA S&uuml;dwest, also holds a 25 percent stake in Wasgau. In the future, the SIEC test which ...b9d5a6c9-9bc9-4e98-8a20-6a8f5a64f316Wed, 12 Jun 2013 00:00:00 GMTEuropean Commission Proposes Legislation to Facilitate Antitrust Damages Claimshttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/European-Commission-Proposes-Legislation-to-Facilitate-Antitrust-Damages-Claims
Yesterday, 11 June 2013, the European Commission published its long-awaited proposal for legislation to facilitate damages claims by victims of infringements of EU antitrust rules.&nbsp;At the same time, the Commission also published a non-binding recommendation on collective redress mechanisms in relation to infringements of EU law and guidance for judges on the quantification of damages in antitrust cases.
The Commission is concerned that only 25 percent of its infringement decisions in the last seven years have resulted in damages claims by victims.&nbsp;Most claimants were large companies, and most actions were brought in the three Member States seen as having favorable legal systems; the UK, Germany and the Netherlands.&nbsp;The Commission estimates that this has resulted in in losses of up to EUR 23 billion going unclaimed each year.
The proposed legislation will now go to the European Parliament and Council for debate and adoption.&nbsp;The Parliament and Council will ...0a554500-c0aa-45fd-9e0e-7b406d6d8cdfFri, 07 Jun 2013 00:00:00 GMTGermany About to Amend Its Competition Lawshttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/Germany-About-to-Amend-Its-Competition-Laws
On 6 June 2013, the representatives of the German Parliament (Bundestag) and the Federal Council (Bundesrat) found a compromise on the reform of German competition law. This brings months of controversy between the government and the opposition to an end. The revised bill proposal should now pass the legislative process without any further difficulties and enter into force most probably within the following months.
The amendments will further align the German competition rules with EU competition law. One of the most significant changes concerns the conditions for the prohibition of mergers. Germany will adopt a provision identical with the one at the EU-level (the so-called SIEC-Test). The threshold for the assumption of single dominance will be lifted from 33 percent to 40 percent and the enforcement powers of the Federal Cartel Office (Bundeskartellamt, FCO) will be strengthened. Ultimately, concentrations of statutory sickness funds will henceforth fall within the scope ...634ea639-c336-4a56-a692-e095148cc302Tue, 30 Apr 2013 00:00:00 GMTMuch-Anticipated Decision On Rates To License Standard Essential Patents Issueshttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/Much-Anticipated-Decision-On-Rates-To-License-Standard-Essential-Patents-Issues
The first federal court decision setting a reasonable and non discriminatory (RAND) licensing rate for standard-essential patents (SEPs) issued last week in the closely watched Microsoft v. Motorola case in the Western District of Washington. Judge James L. Robart's 200-plus page ruling sets a framework to determine RAND rates, relying heavily on pool rates, and is expected to be argued in future disputes regarding RAND commitments and SEPs.
The case involves Motorola patents essential to wireless networking and video coding standards1, which are encumbered by RAND obligations as a result of Motorola's participation in the standard-setting activities related to those technologies.&nbsp;Microsoft, manufacturer of the Xbox, which reads on the standards, sued Motorola for allegedly breaching its RAND obligations by demanding as a license fee 2.25 percent of every Xbox sale.&nbsp;To decide whether Motorola had breached its RAND obligation, the court determined that it must first establish a RAND rate.&nbsp;To ...2aa2068a-98d4-4b1c-b1f7-7f9eb6eefce1Mon, 29 Apr 2013 00:00:00 GMTEuropean Antitrust Developments - Dec. 2012 to Mar. 2013http://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/European-Antitrust-Developments-Dec-2012-to-Mar-2013
Welcome to Crowell &amp; Moring's first quarterly update on&nbsp; European antitrust developments. Below we have provided concise and easily-digestible summaries of the top 5-10 European antitrust developments arising out of the EU and the following key jurisdictions: Germany, UK, France, Belgium and the Netherlands. Where available, we will provide links to the matters for further information. If you would like more detail on any of these developments &ndash; or you have any other comments on the service &ndash; do get in touch and let us know.
Mergers
1) European Commission, Hutchison 3G Austria/Orange Austria (M.6497, 12 December 2012)&nbsp; &ndash; the Commission approved Hutchison 3G's acquisition of Orange's mobile telephony business in Austria after a Phase II investigation and subject to commitments. This despite the parties having a combined market share of only around 22% and the new entity being only the No.3 in the market. Commitments included the ...14adb5c8-477d-4373-9d25-684523ab02dcTue, 23 Apr 2013 00:00:00 GMTReview of Competition Law Fines by German Courts - Differences to the Review by European Courts?http://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/Review-of-Competition-Law-Fines-by-German-Courts-Differences-to-the-Review-by-European-Courts
- German court increases fines against members of liquefied gas cartel
- German Federal Supreme Court clarifies 10% fine limit
In a decision of 15 April 2013, the Higher Regional Court of D&uuml;sseldorf increased the cartel fines on liquefied gas suppliers to a total of EUR 244 million or to up to 85% more than what has been previously imposed by the German competition authority in its administrative decision. In addition, in a decision of 26 February 2013, the German Federal Supreme Court held that the 10% limit for fines imposed on undertakings constitutes the upper limit of the applicable scale of fines, not just a capping threshold as the 10% limit is interpreted to be under EU competition law.&nbsp;These two decisions highlight differences that still prevail in Europe between the enforcement of competition laws at European and at national level.
Increased risk of reformatio in peius? ...65fbd2ac-d5ee-45e2-923e-d4ff43a3bc3aMon, 15 Apr 2013 00:00:00 GMTDOJ Antitrust Division Announces Changes to Corporate Plea Agreement Policyhttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/DOJ-Antitrust-Division-Announces-Changes-to-Corporate-Plea-Agreement-Policy
Late last week, the Department of Justice Antitrust Division (the "Division") announced two changes to long-standing practices regarding individual "carve-outs" in corporate plea agreements for criminal antitrust violations.&nbsp;The changes are significant because they will impact corporate employees and executives who remain under investigation by the Division following a corporate plea, and could shift the dynamics of corporate plea negotiations in some cases.&nbsp;
Bill Baer, the Assistant Attorney General of the Antitrust Division, announced that the Division will abandon its practice of naming the individuals who are "carved out" of corporate plea agreements, recognizing that publicly identifying uncharged individuals was not "appropriate."&nbsp;Baer also commented that the Division will only carve out those individuals who it believes to be culpable and are thus potential targets of the investigation.&nbsp;
The Antitrust Division's plea agreements for criminal antitrust violations customarily include language that includes current and former corporate employees and ...3468dc7d-b7a8-495b-9544-7c20cbf07797Thu, 28 Mar 2013 00:00:00 GMTSupreme Court Raises the Bar for Class Action Suits by Requiring Plaintiffs to Show a Specific Calculation of Damages for the Specific Theory of Harm for which a Class is Certifiedhttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/Supreme-Court-Raises-the-Bar-for-Class-Action-Suits-by-Requiring-Plaintiffs-to-Show-a-Specific-Calculation-of-Damages-for-the-Specific-Theory-of-Harm-for-which-a-Class-is-Certified
On March 27, 2013, in Comcast Corp. v. Behrend, the Supreme Court ruled in a 5-4 decision that a class cannot be certified under Rule 23(b)(3) unless plaintiffs prove that they can calculate damages on a classwide basis, and that the proposed damages methodology isolates damages to the specific theory of harm for which the class is certified.&nbsp;Building on its decision in Wal-Mart v. Dukes, the Court confirmed that the analytical principles it articulated for determining whether the Rule 23(a) factors are satisfied apply equally&mdash;if not more so&mdash;to Rule 23(b), particularly because Rule 23(b)(3)'s predominance prong is more demanding. In finding that the district court had improperly certified the class, the Court reaffirmed that a court cannot sidestep the mandated rigorous analysis required for class certification under Rule 23 simply because the inquiry would also be relevant to the merits determination.&nbsp;&nbsp;
In Comcast&mdash;a case that involved antitrust allegations ...a70a7581-0b83-4e54-a628-98d25ed8266dFri, 22 Feb 2013 00:00:00 GMTFirst Ever RICO Claim Against NPE Dismissed, But Other Claims Including RAND Commitments Remain Viablehttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/First-Ever-RICO-Claim-Against-NPEs-Dismissed-But-Other-Claims-Including-RAND-Commitments-Remain-Viable
Operating companies continue to search for ways to repel ever increasing infringement litigation attacks by non-practicing entities (NPEs).&nbsp;Their newest salvo, the much-watched claim by several wireless local area network (WLAN) product manufacturers against an NPE under the Racketeer Influenced and Corrupt Organizations Act (RICO), however, was dismissed last week by an Illinois federal court.&nbsp;But the decision offers hope for the theory, and allowed other claims to stand.&nbsp;
On February 4, 2013, the U.S. District Court for the Northern District of Illinois dismissed the RICO claim brought by WLAN product manufacturers against Innovatio IP Ventures, a well known NPE.1&nbsp;The manufacturers claimed that Innovatio engaged in "a pattern of unlawful racketeering activity" through a scheme to "deceive and defraud" end-users of Wi-Fi internet in an effort to obtain licensing fees.2&nbsp;
Specifically, the complaint alleged that Innovatio violated RICO by sending thousands of licensing demand letters to businesses around ...b9be291d-a6ff-41ab-97de-4a6c9d5c31b6Tue, 05 Feb 2013 00:00:00 GMTCourt Dismisses Patent Troll Attack on Patent Aggregator RPX (For Now)http://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/Court-Dismisses-Patent-Troll-Attack-on-Patent-Aggregator-RPX-For-Now
A court in California has issued the first decision to address the question of whether the activities of patent aggregators &ndash; entities formed to shield operating companies against infringement suits by non-practicing entities ("NPEs," or so-called "patent trolls") &ndash; raise anticompetitive concerns.&nbsp;Operating companies seeking to fend off suits by patent trolls have increasingly looked to one another for "collective" solutions to the threat posed by NPEs, and this recent decision offers some guidance about how those solutions will be analyzed under the antitrust laws.
On January 24, 2013, the Northern District of California dismissed &ndash; with leave to amend &ndash; antitrust claims brought by Cascades Computer Innovation LLC ("Cascades"), an NPE and alleged patent troll, against RPX Corporation ("RPX"), a patent aggregator and so-called "anti-troll," and several of its members.&nbsp;
RPX is also an NPE, but, according to RPX, rather than acquiring patents for the purpose of ...dd57ecad-834a-4415-afd2-d4bf7d5525aaThu, 10 Jan 2013 00:00:00 GMTFTC Announces New HSR and Section 8 Thresholdshttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/FTC-Announces-New-HSR-and-Section-8-Thresholds
The Federal Trade Commission announced today that it would increase the jurisdictional thresholds applicable to both the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the "HSR Act") and Section 8 of the Clayton Act. These dollar thresholds are indexed annually based on changes in the U.S. gross national product.
The HSR Act requires that certain large transactions be notified prior to their consummation. This year, the minimum "size-of-transaction" threshold for reporting mergers and acquisitions will increase from $68.2 million to $70.9 million. In addition, the "size-of-person" thresholds, the filing fee thresholds and the thresholds applicable to certain exemptions will also increase. These revisions will become effective thirty days after their publication in the Federal Register, which is expected in the next week.
The FTC also issued revised thresholds relating to the prohibition of certain interlocking directorates under Section 8 of the Clayton Act. Those revisions take effect immediately upon ...9e9eab9a-eb01-4036-a97b-53c3b31693ccWed, 09 Jan 2013 00:00:00 GMTFTC Settles with Google on Standard-Essential Patentshttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/FTC-Settles-with-Google-on-Standard-Essential-Patents
On January 3, 2013, the FTC announced the settlement of its long-standing investigation of Google's business practices related to search algorithms, search advertising, and the assertion of standard-essential patents ("SEPs") encumbered by commitments to license on fair, reasonable, and nondiscriminatory ("FRAND") terms.&nbsp;This update focuses on the portion of the settlement that relates to Google's SEPs.
In a 4-1 vote (with Commissioner Ohlhausen dissenting), the Commission imposed an order that requires Google to cease and desist from seeking injunctive relief based on infringement of the FRAND-encumbered SEPs that Google acquired through its purchase of Motorola Mobility LLC, unless one of several conditions is met.&nbsp;
First, the order permits Google to seek injunctive relief against parties outside the jurisdiction of the United States.&nbsp;
Second, Google is permitted to seek injunctive relief if the potential licensee has stated ...a8d1c363-cbb1-4ad7-a2d7-83c4f2edf46dTue, 18 Dec 2012 00:00:00 GMTFTC Continues Campaign Against Injunctions for Standard Essential Patents: Uses Section 5 to Push Section 2 Boundarieshttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/FTC-Continues-Campaign-Against-Injunctions-for-Standard-Essential-Patents-Uses-Section-5-to-Push-Section-2-Boundaries
After a summer in which the FTC repeatedly voiced in speeches and white papers its policy concern over patent hold-up arising from injunctions issued by the ITC or district courts on standard essential patents ("SEPs"),1 over the past couple of weeks the Commission has exercised its enforcement muscle to back-up its advocacy.2 Most recently, the agency:
as part of a proposed settlement in a merger case, ordered the companies not to seek injunctions against companies allegedly infringing their SEPs which they had committed to license on fair, reasonable and non-discriminatory ("(F)RAND") terms;3 and
in an amicus brief filed in the Court of Appeals for the Federal Circuit, advocated against judicial injunctions when the patent holder had previously committed to license SEPs on (F)RAND terms.
Bosch/SPX Merger Challenge.&nbsp;The FTC used ...1a0384aa-5ee0-401d-92d3-0ecaecdf4267Wed, 10 Oct 2012 00:00:00 GMTFTC Finalizes Changes to Rules Governing Investigatory Procedures, Primarily to Address Issues Regarding Electronically Stored Informationhttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/FTC-Finalizes-Changes-to-Rules-Governing-Investigatory-Procedures-Primarily-to-Address-Issues-Regarding-Electronically-Stored-Information
On September 27, 2012, the Federal Trade Commission published final revisions to the Commission's Rules of Practice governing its investigatory process (16 CFR Part 2) and attorney discipline (16 CFR Part 4).&nbsp;Spurred in large part by the challenges posed by discovery of electronically stored information, the Commission explained that the final rules will "update and improve the Commission's Part 2 investigation process by accounting for and incorporating modern discovery methods, facilitating the enforcement of Commission compulsory process, and generally increasing efficiency and cooperation." After the Commission published its proposed revisions on January 23, 2012, a number of individuals and organizations, including Crowell &amp; Moring, submitted public comments regarding the FTC's proposed amendments.&nbsp;While the Commission adopted the bulk of the proposed rules changes without modification, it agreed that "some of the proposed rules can be modified to better reduce the burdens of the Part 2 process without sacrificing the quality of ...86d5108b-4503-4d32-b204-8f92dbcc2194Wed, 26 Sep 2012 00:00:00 GMTFTC Clarifies "Investment Only" Exception to HSR Reportabilityhttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/FTC-Clarifies-Investment-Only-Exception-to-HSR-Reportability
The Federal Trade Commission (FTC) on September 25 reminded purchasers of equity interests of the importance of ongoing assessment of reportability requirements under the Hart-Scott-Rodino Act. Specifically, equity purchasers should carefully consider both the timing of their equity acquisitions and up-to-the-minute evidence of their intent with respect to the shares when determining whether a filing is necessary under the "investment only" exemption contained in the HSR Act.
The FTC announced that, at its request, the Department of Justice (DOJ) had filed a complaint against Biglari Holdings, Inc., in relation to its purchases of equity in Cracker Barrel Old Country Store, a restaurant chain and famed seller of rocking chairs based in Lebanon, TN.&nbsp;The complaint alleges that Biglari violated the HSR Act by failing to report purchases of Cracker Barrel voting securities during the summer of 2011.&nbsp;
According to the government, Biglari made incremental purchases of equity beginning ...9da4832f-ac24-4733-9da2-192b2149ffc9Tue, 24 Jul 2012 00:00:00 GMTMerger Control in the Americas: Increased Convergence or Increased Scrutiny?http://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/Merger-Control-in-the-Americas-Increased-Convergence-or-Increased-Scrutiny
On July 17, the New York State Bar Association hosted a panel of top officials from the Antitrust Division of the U.S. Department of Justice, Brazil's Administrative Council for Economic Defense (CADE), Mexico's Federal Competition Commission, and Canada's Competition Bureau.&nbsp;This panel commented on recent reforms aiming to simplify the merger control process, current best practices, and what to expect of future merger control policy and enforcement in the Americas.
Brazil
CADE Superintendent Carlos Ragazzo made several key remarks on the implementation of the new Brazilian antitrust law, which became effective May 2012. The new Brazilian law created a suspensory merger control regime where approval must be obtained prior to closing.&nbsp;Mr. Ragazzo gave a preview of what to expect of CADE's future process:
Pre-notification Meetings:&nbsp;CADE plans to implement a "triage process" to assess transactions quickly, and prioritize ...694bd4b6-1143-4bfa-8cc1-f08d71509e0bThu, 28 Jun 2012 00:00:00 GMTSeventh Circuit Makes it Easier for Antitrust Plaintiffs to Pursue Their Claims Against Overseas Cartelshttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/Seventh-Circuit-Makes-it-Easier-for-Antitrust-Plaintiffs-to-Pursue-Their-Claims-Against-Overseas-Cartels
The Seventh Circuit issued an opinion yesterday that makes it easier for the U.S. antitrust laws to be applied to international price-fixing cartels that are alleged to have injured U.S. companies and consumers.&nbsp; Continuing a trend started by the Third Circuit in Animal Sci. Prods. v. China Minmetals Corp., 654 F.3d 462 (3d Cir. 2011), the Seventh Circuit held that the Foreign Trade Antitrust Improvement Act of 1982 (the &ldquo;FTAIA&rdquo;) imposes an additional substantive merits limitation on Sherman Act claims involving foreign trade or commerce, instead of a limitation on the subject matter jurisdiction of the federal courts.&nbsp; The decision in Minn-Chem, Inc., et al., v. Agrium Inc., et al., Case No. 10-1712 (7th Cir. June 27, 2012), means that defendants will now face an increased burden when seeking dismissal of antitrust claims involving alleged foreign anticompetitive conduct.
In the case, the defendants argued that the FTAIA, which states ...385baeda-410a-435f-8790-a17bb18619d5Fri, 15 Jun 2012 00:00:00 GMTFTC Urges ITC to Deny Exclusion Orders for RAND-Encumbered Standard Essential Patent Holdershttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/FTC-Urges-ITC-to-Deny-Exclusion-Orders-for-RAND-Encumbered-Standard-Essential-Patent-Holders
The Federal Trade Commission ("FTC") recently submitted comments to the U.S. International Trade Commission ("ITC") opposing the issuance of exclusion orders banning imports of products that infringe on RAND-encumbered standard essential patents (SEPs) in two investigations. Specifically, the FTC argued that the threat of an exclusion order would give the SEP holder leverage to extract royalties that are not reasonable and that an exclusion order would therefore be anticompetitive. The FTC went further in expressing skepticism that exclusion orders are appropriate in any investigation involving RAND-encumbered SEPs. The FTC's comments, made in the context of a major uptick in ITC cases, reflect increased interest by antitrust regulators in intellectual property issues generally and in standard setting activities in particular that could have implications for the broader interplay between antitrust and patent law.&nbsp;&nbsp;&nbsp;&nbsp;
The FTC's comments were submitted in the context of two separate investigations brought by Motorola Mobility ...6af83d7f-1e3b-4844-8aa4-3bba2394e809Mon, 07 May 2012 00:00:00 GMT"Toto – We Can't Be In Kansas": Kansas Supreme Court Scuttles Rule of Reason for Resale Price Agreements Under State Lawhttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/Toto-We-Cant-Be-In-Kansas-Kansas-Supreme-Court-Scuttles-Rule-of-Reason-for-Resale-Price-Agreements-Under-State-Law
UPDATE NOTE: On April 16, 2013, the Kansas legislature reversed the decision discussed below, and adopted a "reasonableness" standard for analyzing vertical price agreements.&nbsp;
On May 4, 2012, Kansas joined the growing trend among states to limit the distribution flexibility that had been anticipated would flow from the 2007 U.S. Supreme Court decision in Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877 (2007). In a far reaching and potentially disruptive opinion, the Supreme Court of the State of Kansas in O'Brien v. Leegin Creative Leather Products, Inc., No. 101,000 (May 4, 2012) held that vertical resale price agreements, whether purely vertical or in a dual distribution setting, are per se illegal under the Kansas Restraint of Trade Act. While explicitly acknowledging that both types of agreements would be analyzed under the "rule of reason" at the federal level, the Kansas Supreme Court rejected the applicability ...ef02e440-1863-4cbc-a6e9-03d2161f9d0dThu, 03 May 2012 00:00:00 GMTEighth Circuit Approves Use of Fraud Guidelines for Antitrust Crimeshttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/Eighth-Circuit-Approves-Use-of-Fraud-Guidelines-for-Antitrust-Crimes
In a landmark decision that could have a significant impact on sentencing in antitrust cases, the Eighth Circuit affirmed a lower court's use of U.S. Sentencing Guidelines ("Sentencing Guidelines") for fraud, rather than the applicable guidelines for antitrust violations.&nbsp;U.S. v. VandeBrake, No. 11-1390, 2012 WL 1448486 (Apr. 27, 2012).&nbsp;Because the fraud sentencing guidelines allow for more severe penalties in many cases, the Eighth Circuit's decision is likely to affect some antitrust defendants' decisions about whether to plea and, if so, what sentence to accept. In addition, DOJ will likely rely upon this decision during plea negotiations to advocate for stiffer sentences.&nbsp;
District Court Opinion
In February 2011, Steven VandeBrake pled guilty to three antitrust conspiracies for price fixing and bid-rigging related to his family's business, which sold concrete products throughout northwest Iowa.&nbsp;The conspiracies took place between January 2006 and August 2009, and impacted approximately $5.6 million in ...41d034a5-0bc0-4f33-b5e9-e063ad7c0aa0Fri, 10 Feb 2012 00:00:00 GMTBundeskartellamt and Public Prosecutors Jointly Focusing on the Prosecution of Bid Rigginghttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/Bundeskartellamt-and-Public-Prosecutors-Jointly-Focusing-on-the-Prosecution-of-Bid-Rigging
On 10 February, 2012 the Bundeskartellamt announced that it will strengthen its cooperation with the competition authorities of the Länder and public prosecutors in the framework of the prosecution of bid rigging. The announcement comes at the end of a week that already saw a set of meetings between stakeholders of these parties, and could herald a more rigorous institutionalized approach to the prosecution of conduct that is condemned under both German competition and criminal law.
Background
Under German law, bid rigging is deemed anti-competitive and can lead to the imposition of administrative sanctions (including fines) on the undertakings involved. It is also a criminal offense that can lead to prosecution of the individuals acting on behalf of the undertakings involved, with penalties of up to five years of imprisonment.
Due to the number of institutions implicated (Bundeskartellamt and competition authorities of the Länder with regard ...777c6dd8-d8cc-40ac-ac02-49d40c6bd8afFri, 03 Feb 2012 00:00:00 GMTSecond Circuit Weighs in Again on Class Action Waivers in Arbitration Agreementshttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/Second-Circuit-Weighs-in-Again-on-Class-Action-Waivers-in-Arbitration-Agreements
On February 1, 2012, the United States Court of Appeals for the Second Circuit reconfirmed two prior decisions that class action waivers in certain arbitration provisions applied to antitrust disputes are unenforceable.&nbsp; These waivers require arbitration to be conducted on an individual rather than class-wide basis.&nbsp; The decision is significant because it follows two recent United States' Supreme Court rulings in which class action waivers were upheld, each of which required the Second Circuit to review its initial ruling that rejected the enforceability of the class action waivers. &nbsp;The Second Circuit explained that the Supreme Court decisions did not declare all class action waivers either per se enforceable or per se unenforceable.&nbsp; Rather, the Second Circuit emphasized that the enforceability of class action waivers would depend upon the particular facts in each case and that plaintiffs had to demonstrate effectively "that their claims cannot reasonably be pursued as individual actions."
...3a408081-c2ad-41df-a8d6-5fc775269f56Fri, 27 Jan 2012 00:00:00 GMTFTC Proposes Changes to Rules Governing Investigatory Procedures, Primarily to Address Issues Regarding Electronically Stored Informationhttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/FTC-Proposes-Changes-to-Rules-Governing-Investigatory-Procedures-Primarily-to-Address-Issues-Regarding-Electronically-Stored-Information
On January 13, 2012, the Federal Trade Commission announced a number of proposed changes to Parts 2 and 4 of the Commission’s Rules of Practice governing its investigatory process, “[e]specially in response to growing reliance upon and use of electronic media in document discovery.” Given the challenges posed by the routine discovery of large, non-uniform, broadly dispersed volumes of electronically stored information (“ESI”), the Commission expressed its interest in making its “procedures more efficient and less burdensome for all parties.” It claims the proposed changes will “expedite investigatory processes” and “keep pace with technology.”
In many ways, the recognized need for reform of the Commission’s investigatory process is likely welcomed by lawyers and parties involved in Commission investigations. For example, some may argue that the Commission historically has been hesitant to recognize the effectiveness and efficiencies that can result from advanced technologies used in modern e-discovery. The introduction ...f52cfecf-8416-4a9f-8d06-25b031845d54Thu, 26 Jan 2012 00:00:00 GMTFTC Increases HSR and Section 8 Thresholdshttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/FTC-Increases-HSR-and-Section-8-Thresholds
The Federal Trade Commission announced today that it would increase the jurisdictional thresholds applicable to both the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the "HSR Act") and Section 8 of the Clayton Act. These dollar thresholds are indexed annually based on changes in the U.S. gross national product.
The HSR Act requires that certain large transactions be notified prior to their consummation. This year, the minimum "size-of-transaction" threshold for reporting mergers and acquisitions will increase from $66.0 million to $68.2 million. In addition, the "size-of-person" thresholds, the filing fee thresholds and the thresholds applicable to certain exemptions will also increase. These revisions will become effective thirty days after their publication in the Federal Register.
The FTC also issued revised thresholds relating to the prohibition of certain interlocking directorates under Section 8 of the Clayton Act. Those revisions take effect immediately upon their publication in the Federal Register.
...efa5cfc5-2d40-40d5-b810-fac74e5d11c0Fri, 09 Dec 2011 00:00:00 GMTGeneral Court Confirms Commission Decision Not To Investigate Cartridge Market For Ink Jet Printershttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/General-Court-Confirms-Commission-Decision-Not-To-Investigate-Cartridge-Market-For-Ink-Jet-Printers
On 24 November 2011, the General Court of the European Union ("GC") in Luxemburg confirmed a decision of the European Commission ("Commission") not to open a formal antitrust investigation against Hewlett Packard, Lexmark, Canon and Epson. The case is interesting because, inter alia, the court had to assess whether competition on the primary market might exclude the finding of dominance on the consumables market and under which conditions.
The decision of the GC marks the (temporary) end to the long lasting attempts by the European Federation of Ink and Ink Cartridge Manufacturers ("EFIM") and certain ink manufacturers to induce the Commission to open up the markets for ink and ink cartridges for ink jet printers. EFIM has, however, two months to appeal against the GC's decision.
Background: Since March 2000 Pelikan, an ink manufacturer, and subsequently EFIM had brought several complaints to the Commission alleging first that Hewlett ...4a9f56c7-c206-471e-bae0-ee5dad44ba6cThu, 01 Dec 2011 00:00:00 GMTEuropean Commission Gives High-Level Guidance on Antitrust Compliancehttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/European-Commission-Gives-High-Level-Guidance-on-Antitrust-Compliance
On 24 November 2011, the European Commission ("Commission") gave some guidance on how companies could comply with the antitrust provisions of European law putting forward what it calls "a road safety brochure ahead of the holiday period." While the brochure and the accompanying website1 give some high-level insights on what kind of compliance measures the Commission would see as adequate, there is no departure from the established Commission practice that a compliance program as such does not have any impact on the assessment of a matter, notably does not justify a reduction of fines.
The Commission stresses, however, that it is not its task to formally advise on (or even approve) individual compliance programs. Consequently, the brochure is not more than a helpful starting point predominantly for start-ups or smaller companies.
Background
The last years have shed broad light on the possible consequences of violations of ...c5bc31ef-f6f8-4d86-9817-4344f44fc269Wed, 02 Nov 2011 00:00:00 GMTGerman Constitutional Court Declines to Rule on National Legislation Strictly Implementing European Lawhttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/German-Constitutional-Court-Declines-to-Rule-on-National-Legislation-Strictly-Implementing-European-Law
On 26 October, 2011, the German Constitutional Court (Bundesverfassungsgericht) published a decision on the scope of its jurisdiction with regard to national legislation implementing European law. In line with previous case-law, the court held that as a general rule and as long as the EU provided for an effective protection of fundamental rights against its acts, it is only competent to assess whether national legislation transposing European law complies with the fundamental rights enshrined in the German constitution if the German legislator had some discretion how to transpose European law. In its decision, the court now laid down some procedural criteria in order to ensure that cases revolving around national legislation strictly implementing European legislation are not brought before him. The court held that
a national court has to make an own assessment whether the German legislator had any discretion when transposing European ...8990bcb3-bbc7-41f3-837b-1f3bc77dd692Fri, 14 Oct 2011 00:00:00 GMTEuropean Court of Justice Further Supports Internet Saleshttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/European-Court-of-Justice-Further-Supports-Internet-Sales
Yesterday, 13 October 2011, the European Court of Justice ("ECJ") issued a decision on the general and absolute ban on internet sales in a selective distribution network. In line with recent case-law, the ECJ supported the internet as a sales channel and rejected arguments that
the need to provide individual advice to the customer,
to ensure his protection against the incorrect use of products or,
the manufacturer's strategy to maintain the prestigious image of his products,
suffice to impose an outright ban of internet sales on distributors.
Even though interpreting Regulation No 2790/1999 – which has been replaced by Regulation No 330/2010 last year – the ruling gives important guidance on the limits manufacturers can impose on internet sales. It largely supports the ...26052b65-7530-4d5f-aa2b-0d424352b10cFri, 15 Jul 2011 00:00:00 GMTMandatory Indian Merger Control: What You Need to Knowhttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/Mandatory-Indian-Merger-Control-What-You-Need-to-Know
Merger control is now mandatory, and suspensory, in India. Effective June 1, 2011, all transactions meeting the notification thresholds require filing with, and approval from, the Competition Commission of India ("CCI"). Parties to these transactions will have to suspend closing prior to receiving approval. The CCI in May 2011 issued the Competition Commission of India (Procedure in regard to the transaction of business relating to combinations) Regulations, 2011 ("Regulations"). A copy of the Regulations can be downloaded at the bottom of this page.
Substantive Test
Section 5 and 6 of the Competition Act, 2002 ("Act") prohibit a combination which causes or is likely to cause an appreciable adverse effect on competition within the relevant market in India and treat such combinations as void.
Applicability
For mergers and amalgamations, covered transactions are those approved on or after June 1 by the boards of directors of the entities involved in the ...c110295d-cb1c-48a8-8e9a-8a472974eab4Thu, 07 Jul 2011 00:00:00 GMTFTC Requires More Documents With Revised HSR Notification Formhttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/FTC-Requires-More-Documents-With-Revised-HSR-Notification-Form
The "4(c)" documents we have all come to know and love have now been joined by the new "4(d)" documents. As expected from the advance notice, the FTC and DOJ today reaffirmed the importance of key business documents to their analysis by making it official that an expanded set of such documents must be submitted along with the new revised HSR Notification and Report Form. Those and other changes to the form will be effective in about 30 days.
The revised HSR form creates several new disclosure obligations intended to assist the agency review process, while eliminating others the agencies determined are no longer necessary. The most significant revisions include:
Production of Additional Documents. The revised form expands the list of documents parties must submit in connection with an HSR notification to include: (i) the "confidential information memorandum" or similar ...50350fda-0d94-46d4-864a-36c48184d4ceWed, 29 Jun 2011 00:00:00 GMTFTC Hosts Workshop on Intellectual Property Rights In Standard Setting: Tools to Prevent Patent Hold-Uphttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/FTC-Hosts-Workshop-on-Intellectual-Property-Rights-In-Standard-Setting-Tools-to-Prevent-Patent-Hold-Up
On June 21, the FTC held a workshop to explore issues in standard setting with scholars, economists, practitioners and industry participants from standards bodies and companies including Cisco, Microsoft, SAP, Intel and others.
The agenda included three separate panel discussions: disclosure obligations in standards setting; ex ante disclosure or negotiation of licensing terms; and the relevance and significance of RAND licensing commitments.
The panel on IPR disclosure policies and practices of standard setting focused on whether hold-up actually results from failure by parties to disclose IPR prior to the adoption of a standard. Panelists agreed that (at least in most cases) general disclosure by parties holding relevant IPR is sufficient to prevent hold-up, by allowing potential licensees to identify the relevant parties with which they will have to negotiate. There was also general agreement that specific disclosure of every essential patent may be less important, and ...affa71f7-0344-4ea4-b6b9-2e643e5b61c3Wed, 22 Jun 2011 00:00:00 GMTHidden Discount Judgment of $2 Billion Against Ford: Implications for Pricing Systemshttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/Hidden-Discount-Judgment-of-2-Billion-Against-Ford-Implications-for-Pricing-Systems
An Ohio state court's recent entry of a $2 billion judgment against Ford Motor Company has potential implications for every company that offers price concessions in the course of moving inventory through its distribution system. Our analysis looks at the "hidden discounts" that were at the heart of the Ford case, and then flags significant points that companies need to address to avoid being ensnared in similar class action claims.The case, Westgate Ford Truck Sales Inc. v. Ford Motor Co., No. 02-483526 (Court of Common Pleas, Cuyahoga County, OH, June 10, 2011), centered on Ford's agreements with its commercial truck dealers. Plaintiffs represented a class of over 3000 dealerships, who, together, sold over nearly half a million commercial trucks during the implicated time period. According to the dealers, Ford breached its agreements with them by inflating its published prices and failing to disclose hidden discounts that were routinely given to individual ...af2a64bc-7347-4275-a6d6-d8a40bf0fc54Tue, 21 Jun 2011 00:00:00 GMTAntitrust Division Issues Updated Policy Guide to Merger Remedieshttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/Antitrust-Division-Issues-Updated-Policy-Guide-to-Merger-Remedies
On June 17, 2011, the Department of Justice Antitrust Division released an updated version of its Policy Guide to Merger Remedies, which was last issued in October 2004. The revised Policy Guide, which is intended as a tool for the Antitrust Division staff in analyzing proposed remedies to mergers and to provide transparency into the Division's approach, "reflects the changes in the merger landscape and the lessons the Division has learned." The new Policy Guide reflects the Division's use of extensive conduct-based remedies to resolve a series of vertical merger challenges in recent years, including Ticketmaster-Live Nation; Comcast-NBC Universal, and Google-ITA. With the expanded use of remedies requiring on-going supervision of the conduct of merging parties, often for many years after the transaction closes, the Division is also centralizing decree enforcement in its recently-created Office of General Counsel. While the Policy Guide identifies a range of remedies for both horizontal ...a554291a-e8fb-4a01-bf65-e79d7338ca31Wed, 02 Feb 2011 00:00:00 GMTOFT Investigates Possible RPM in Relation to E-bookshttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/OFT-Investigates-Possible-RPM-in-Relation-to-E-books
The OFT has confirmed that it is investigating the pricing of e-books in the UK following &quot;a significant number of complaints&quot;.&nbsp; Targets of the investigation appear to include Pearson and Lagad&egrave;re.
The issue under investigation is apparently an &quot;agency pricing&quot; model adopted by certain publishers under which the publisher sets the retail price (rather than the on-line retailer).&nbsp; On its face the issue under investigation therefore appears to be resale price maintenance (&quot;RPM&quot;).&nbsp;
This would be unusual as the OFT has traditionally senior management have historically been skeptical of the value of pursuing standard RPM cases.&nbsp; One possible explanation is that, at least in the US where a similar investigation by attorney generals in Connecticut and Texas is underway, Apple appears to have played a coordinating role in persuading publishers to adopt the agency model.&nbsp; In other words, there may be some suggestion of hub-and-spoke cartel type ...df261f28-e90e-42d1-8ced-f3935a4b3fabMon, 24 Jan 2011 00:00:00 GMTRobust State Enforcement of Minimum Resale Price Maintenance May Require New Approaches to Pricinghttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/Robust-State-Enforcement-of-Minimum-Resale-Price-Maintenance-May-Require-New-Approaches-to-Pricing
Two recent state enforcement actions that relied solely on state law to attack minimum resale price maintenance (&quot;RPM&quot;) provide the latest indication that states are diverging from federal antitrust law in their increasingly strong efforts to police RPM agreements in the aftermath of the Supreme Court's decision in Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877 (2007).&nbsp;
In California v. Bioelements, Inc., case no. 10011659 (January 11, 2011), the California Attorney General accused Bioelements of engaging in a vertical price-fixing scheme.&nbsp; Bioelements, a manufacture of beauty products, had required its retailers to sign an agreement which stated that the retailers were required to sell the company's products for at least as much as the suggested retail prices prescribed by Bioelements.&nbsp; The California Attorney General alleged that this conduct constituted vertical price fixing, and was therefore a per se violation of the Cartwright Act, California's antitrust ...848143ab-ebc4-48c7-be0c-cacf0c5fb355Fri, 21 Jan 2011 00:00:00 GMTFTC Announces Increased HSR and Section 8 Thresholdshttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/FTC-Announces-Increased-HSR-and-Section-8-Thresholds
As further evidence that the U.S. economy has begun to turn the corner, the Federal Trade Commission announced today that it would increase the jurisdictional thresholds applicable to both the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the &quot;HSR Act&quot;) and Section 8 of the Clayton Act. These dollar thresholds are indexed annually based on changes in the U.S. gross national product.
The HSR Act requires that certain large transactions be notified prior to their consummation. This year, the minimum &quot;size-of-transaction&quot; threshold for reporting mergers and acquisitions will increase from $63.4 million to $66.0 million. In addition, the &quot;size-of-person&quot; thresholds, the filing fee thresholds and the thresholds applicable to certain exemptions will also increase. These revisions will become effective thirty days after their publication in the Federal Register.
The FTC also issued revised thresholds relating to the prohibition of certain interlocking directorates under Section 8 of the Clayton Act. ...8497fbf9-aa75-40a1-a746-903eafa02b93Wed, 15 Dec 2010 00:00:00 GMTFine of € 38 million (US$ 51 million) for Procedural Breach during a 'Dawn Raid' upheld by EU Courthttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/Fine-of-38-million-US-51-million-for-Procedural-Breach-during-a-Dawn-Raid-upheld-by-EU-Court
Today, December 15, 2010, the EU's General Court upheld the European Commission's decision to impose a &euro; 38 million fine on the Germany energy company E.ON for breaching a seal during an antitrust dawn raid.
The General Court held that E.ON was &quot;required to take all necessary measures to prevent any tampering with the seal&quot; and the Commission was entitled to conclude that, at very least, the seal had been broken negligently.&nbsp; The scale of the fine was not disproportionate given (i) the seriousness of the incident; and (ii) the need to ensure that companies did not benefit from breaking seals.
This was the first case in which the Commission had imposed such a fine in procedural cases of this kind.&nbsp; However, the Commission is now pursuing two other similar cases, one relating to the breach of a seal, the other to the refusal to submit to ...c11c659b-f23c-4e5b-b366-b3fac3329548Tue, 14 Dec 2010 00:00:00 GMTEuropean Commission Adopts New Antitrust Guidelines On Cooperation Between Competitorshttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/European-Commission-Adopts-New-Antitrust-Guidelines-On-Cooperation-Between-Competitors
Today, December 14, 2010, the European Commission has adopted revised guidelines on the treatment of cooperation between competitors under EU antitrust rules. The main changes from previous Commission guidance concern standardization, information exchange and the treatment of joint ventures. The guidelines also cover joint R&amp;D, production, distribution and purchasing.
The Commission also adopted new versions of two less frequently used block exemption (safe harbor) regulations: the R&amp;D and joint production and specialization block exemptions.
Standardization
The Commission has substantially revised its guidance on standard-setting agreements, both from its previous guidelines and from the version of these guidelines that was put out to consultation in May 2010.
The guidance now sets out 'safe harbor' criteria for standard-setting agreements including (i) open participation for all relevant competitors (ii) transparency so that stakeholders can inform themselves on upcoming, on-going and finalized work and (iii) a balanced IPR policy ...c3784bd1-bdd0-4e1d-9841-7393904c1074Tue, 30 Nov 2010 00:00:00 GMTCalifornia's Predatory Pricing Law Differs From Federal Counterparthttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/Californias-Predatory-Pricing-Law-Differs-From-Federal-Counterpart
The California Supreme Court has let stand an appellate court ruling that allows for broad interpretation of California state predatory pricing law. Significantly, the case holds that proof of recoupment is not required to prevail in predatory pricing cases. This broad interpretation means that it will be easier to bring predatory pricing cases against California retailers and merchants.
In Bay Guardian Co. v. New Times Media LLC, 187 Cal.App.4th 438 (August 11, 2010), the First District Court of Appeal in San Francisco held that California's state predatory pricing statute, the Unfair Practices Act (&sect;1700 et seq.), does not require proof of the defendant's ability to recoup losses. The case was brought by the Bay Guardian against the SF Weekly, and its parent New Times Inc., alleging that SF Weekly was selling advertisements below cost to drive Bay Guardian out of business. On November 23, 2010, the California Supreme ...47459585-dab7-4857-a9d3-3ed8e7344c62Thu, 02 Sep 2010 00:00:00 GMTFederal Circuit's En Banc Princo Decision Limits Patent Misuse Doctrinehttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/Federal-Circuits-En-Banc-Princo-Decision-Limits-Patent-Misuse-Doctrine
On August 30, the U.S. Court of Appeals for the Federal Circuit issued an en-banc decision affirming the International Trade Commission's (&quot;ITC&quot;) holding that the &quot;patent misuse&quot; doctrine did not prevent U.S. Philips Corporation (&quot;Philips&quot;) from enforcing its patent rights against Princo Corporation and Princo America Corporation (collectively &quot;Princo&quot;).&nbsp; The court's decision, Princo Corp. v. International Trade Comm'n, No. 2007-1386 (Fed. Cir. Aug. 30, 2010) confirms the narrow scope of the patent misuse doctrine, and underscores the broad protection afforded patent holders when licensing their patents.&nbsp; The case also highlights the challenges that can arise when reconciling intellectual property and antitrust law.
Background
Philips and Sony Corporation had entered into a joint venture in which the companies developed technology used in recordable compact discs (&quot;CD-R&quot;) and rewritable compact discs (&quot;CD-RW&quot;).&nbsp; The companies then generated technical standards to ensure that discs made by other manufacturers would also be ...5288c93d-7b3b-4820-bc31-335d4dedfc91Fri, 20 Aug 2010 00:00:00 GMTFTC and DOJ Issue Final Version of Revised Merger Guidelineshttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/FTC-and-DOJ-Issue-Final-Version-of-Revised-Merger-Guidelines
On August 19, 2010, the FTC and DOJ jointly issued the final version of the revised Horizontal Merger Guidelines, marking the end of a revision process initiated in September 2009. Following a series of workshops and dozens of public comments, the agencies issued draft revised guidelines in April 2010, which drew further comments from the public. The latest round of public comments and agency review prompted minor revisions to the April 2010 draft guidelines, noted below.&nbsp;
The revised Guidelines describe a more flexible, fact-specific inquiry, as opposed to the more structured methodology outlined in the prior 1992 Guidelines. The new Guidelines incorporate four major changes from the 1992 version:&nbsp;
Reduced Emphasis on Market Definition. The revised Guidelines make clear that merger review &ldquo;need not start with market definition.&rdquo; While the principles of market definition are preserved, the revised Guidelines now explicitly allow for the assessment of a transaction&rsquo;s ...b1c5fac1-5c8e-4428-a3e0-959c3b97dfb1Tue, 17 Aug 2010 00:00:00 GMTFTC Notices Proposed Changes To HSR Formhttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/FTC-Notices-Proposed-Changes-To-HSR-Form
On August 13, 2010, the Federal Trade Commission issued several proposed changes to the Notification and Report Form companies must complete when notifying transactions subject to the Hart-Scott-Rodino Act.
In addition to simplifying certain hyper-technical reporting requirements, the FTC's proposed revisions would create three new or expanded disclosure obligations. Specifically, the proposed rules would: (1) require all parties to provide additional business documents related to the transaction; (2) expand and modify the parties' revenue reporting obligations; and (3) require disclosure of additional information regarding &quot;associated&quot; entities.
Production of Additional Documents. The proposed rules would expand the list of documents that parties must submit in connection with an HSR notification to include: (i) offering memoranda or similar materials (that are routinely provided now under current HSR practice, however, the proposed changes would require them to be provided even if not prepared by or ...c2daec3e-42dd-4c4a-88a9-5591e8ecc947Wed, 04 Aug 2010 00:00:00 GMTFTC Settles Charges That Intel Violated Section 5 of the FTC Acthttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/FTC-Settles-Charges-That-Intel-Violated-Section-5-of-the-FTC-Act
On August 4, 2010, the Federal Trade Commission approved a proposed consent order with Intel. This settlement resolved FTC allegations that Intel violated Section 5 of the FTC Act when it used de facto exclusive dealing arrangements and market share deals to induce original equipment manufacturers to forgo purchasing non-Intel central processing units (&quot;CPUs&quot;) and graphics processing units (&quot;GPUs&quot;). The FTC complaint also alleged that Intel engaged in predatory engineering practices to exclude competitors.
According to the FTC, the proposed consent order is designed to renew competition and prevent Intel from suppressing CPU and GPU competition in the future. To that end, the FTC imposed detailed restrictions on Intel's licensing, engineering and commercial practices.
More specifically, the consent decree requires Intel:
To assure foundry owners that third parties have appropriate &quot;have made&quot; rights under Intel's licensing agreements
...dcd64b28-bdbd-498e-9b90-39a0f99c51a6Tue, 13 Jul 2010 00:00:00 GMTCalifornia Supreme Court Rejects "Pass-on" Defense for Antitrust Damageshttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/California-Supreme-Court-Rejects-Pass-on-Defense-for-Antitrust-Damages
On July 12, 2010, the California Supreme Court resolved an issue of first impression in Clayworth v. Pfizer, finding that the pass-on defense is not available under California law to defendants accused of price-fixing. In a unanimous decision, the Court held that for private antitrust litigation under California&rsquo;s Cartwright Act, it is no defense that the plaintiff passed on its damages to its customers. The case has far-reaching effects for defendants in defending against antitrust claims brought under California law.&nbsp;
In antitrust litigation, the pass-on defense involves an attempt by a defendant to show that a direct or intermediary purchaser plaintiff has passed on an alleged price overcharge to an indirect purchaser and therefore suffered either no damages or limited damages. Federal antitrust law does not provide for the pass-on defense under the U.S. Supreme Court&rsquo;s holding in Hanover Shoe, Inc. v. United Shoe Machinery Corp., and ...e7fa5777-f7ac-4dea-9d44-34bded21dff9Wed, 05 May 2010 00:00:00 GMTEuropean Commission publishes draft rules applicable to horizontal co-operation agreementshttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/European-Commission-publishes-draft-rules-applicable-to-horizontal-co-operation-agreements
On 4 May 2010, the European Commission published its awaited draft regulations and guidelines for the assessment of co-operation agreements between competitors.
Currently, guidance for horizontal co-operation is provided by two block exemption regulations, Commission Regulation (EC) No. 2659/2000 on research and development (R&amp;D) agreements (&quot;R&amp;D BER&quot;), Commission Regulation (EC) No. 2658/2000 on specialisation agreements (&quot;Specialisation BER&quot;), and the accompanying horizontal guidelines. The block exemption regulations exempt research and development as well as specialisation and joint production agreements from the EU's general ban on restrictive business practices laid down in Article 101 (1) of the Treaty on the Functioning of the European Union (&quot;TFEU&quot;), provided they meet all conditions set out in the regulations. The horizontal guidelines provide an elaborated analytical framework for the assessment of the most common types of horizontal co-operation agreements (including certain concerted practices) and are therefore of the highest practical importance. The European Commission ...504b118c-67d9-46bf-9d08-21736d3e2770Mon, 03 May 2010 00:00:00 GMTPrivilege does not extend to in-house or foreign lawyers in EU antitrust cases says Advocate General of European Court of Justicehttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/Privilege-does-not-extend-to-in-house-or-foreign-lawyers-in-EU-antitrust-cases-says-Advocate-General-of-European-Court-of-Justice
On 29 April, the Advocate General of the European Court of Justice (ECJ) issued an Opinion that legal privilege does not extend to in-house or foreign (e.g., US) lawyers in the context of EU antitrust investigations. The Advocate General also appeared to cast doubt on the scope of privilege for EU-qualified outside counsel.
This Opinion, issued in the appeal of the landmark case Akzo and Akcros v Commission, affirms existing EU case law. The Opinion is not binding on the ECJ, which will issue its judgment within 3 to 6 months. In most cases, however, the ECJ follows the Opinion of the Advocate General.
If the ECJ follows this Opinion, advice from in-house and foreign lawyers will not be protected from disclosure to the European Commission and could be seized in the context of so-called &quot;dawn raids&quot;, and used by the Commission to build its cases. Indeed, it ...2c1200f6-5d6d-4c6d-aeb7-23a5a314de82Mon, 03 May 2010 00:00:00 GMTSecond Circuit Wants Full Court Review of Reverse Exclusionary Settlement Paymentshttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/Second-Circuit-Wants-Full-Court-Review-of-Reverse-Exclusionary-Settlement-Payments
A Second Circuit panel has invited an en banc or full court review of a &quot;reverse exclusionary settlement payments&quot; case that may ultimately reach the Supreme Court. The case is Arkansas Carpenters Health and Welfare Fund v. Bayer A.G., Nos. 05-2851-cv(L) and 05-2852-cv(CON) (2d. Cir. Apr. 29, 2010). The opinion is attached.
1. Reverse Exclusionary Settlement Payments
The Drug Price Competition and Patent Term Restoration Act of 1984 - commonly known as the &quot;Hatch-Waxman Act&quot; - enables generic manufacturers to enter the market for a particular drug before the branded manufacturer's patent has expired through the filing of a pre-expiration challenge. At the same time, the Hatch-Waxman Act considers the pre-expiration challenge as infringing activity that could be the basis for the branded manufacturer suing the generic competitors.
Hatch-Waxman litigation frequently settles with the branded manufacturer (the patent holder) paying the generic competitor (the alleged infringer) in ...484e36f6-b903-4990-b25b-0c54f9f45acaFri, 30 Apr 2010 00:00:00 GMTUK Competition Authority in Retreat on Dairy Products "Hub and Spoke" Information Exchange Case -- Partially abandons case and hands back GB£ 50 million in agreed penaltieshttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/UK-Competition-Authority-in-Retreat-on-Dairy-Products-Hub-and-Spoke-Information-Exchange-Case-Partially-abandons-case-and-hands-back-GB-50-million-in-agreed-penalties
Today, 30 April, the UK antitrust regulator, the Office of Fair Trading ('OFT'), announced that it was partially abandoning its case against various supermarkets and dairy firms in relation to the exchange of pricing information. As a result, the OFT will return GB&pound; 50 million in agreed penalties paid by parties that had reached &quot;early resolution&quot; settlements. The OFT has altogether abandoned its case against Morrisons, one of two supermarkets that did not settle.
The OFT will retain approximately GB&pound; 70 million in agreed penalties in relation to the remaining aspects of the case, and is likely to impose significant further penalties on Tesco, the other supermarket that contested the OFT's case.
In September 2007, the OFT issued a statement of objections alleging that in 2002 and 2003, 5 supermarkets and 5 diary processors had colluded in relation to the retail prices of milk, cheese and butter by ...c98fae24-c34b-44f7-92b6-a8c41756c72cMon, 26 Apr 2010 00:00:00 GMTEuropean Commission Adopts New Competition Rules For Distribution Of Goods And Serviceshttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/European-Commission-Adopts-New-Competition-Rules-For-Distribution-Of-Goods-And-Services
On 20 April 2010 the European Commission adopted the new block exemption regulation and guidelines for vertical agreements. The new rules will enter into force on 1 June 2010. A one year transition period applies to existing agreements.
The new rules are intended to take into account market developments during the past decade, such as the increased concentration of the retail sector and the growth of online sales. The guidelines also contain new sections on specific market practices in the retail sector, such as up-front access payments and category management.
The new BER for the first time introduces a 30% market share threshold for the buyer. The current BER exempts vertical agreements provided the market share of the supplier does not exceed 30% (except in case of exclusive supply for which the market share of the buyer needs to be taken into account). As from 1 June 2010 ...8b69f71c-7a0e-498d-8888-d4d6ebfea88cTue, 20 Apr 2010 00:00:00 GMTFTC, DOJ Issue Revised Merger Guidelineshttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/FTC-DOJ-Issue-Revised-Merger-Guidelines
Today, the FTC and DOJ jointly issued their proposed revision of the Horizontal Merger Guidelines. The Guidelines, which have not been updated in more than a decade, outline how the agencies evaluate the likely competitive impact of proposed mergers and acquisitions and assess whether to challenge individual transactions. This proposed revision is intended to more accurately reflect the agencies' current policies and practices, and further reflects the Obama administration's more aggressive approach to antitrust enforcement.
As expected, the agencies' proposal includes several material changes to the existing Guidelines. In particular, the proposed revisions provide for a flexible fact-specific inquiry into the merits of the transaction, eliminating the current, structured methodology. The Guidelines focus extensively on methods for directly determining competitive effects, and significantly decreases the role and importance of market definition. As examples, the Guidelines indicate that the agencies will look at actual effects arising from consummated mergers ...fc92c1a4-b3ec-4727-90bd-de0e03f7ea9fFri, 05 Mar 2010 00:00:00 GMTHedge Funds and Antitrust Compliance: Antitrust Division Investigates Hedge Funds Shorting Eurohttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/Hedge-Funds-and-Antitrust-Compliance-Antitrust-Division-Investigates-Hedge-Funds-Shorting-Euro
When is sharing of investment strategies collusion? This question seems to be at the center of an inquiry by the Antitrust Division of the Department of Justice in connection with investment strategies shorting the value of the Euro. Recent press reports indicate that the Department of Justice has sent requests to several hedge funds in connection with their trades relating to the Euro. These requests were sent the same day the Wall Street Journal reported that portfolio managers of several large hedge funds attended an exclusive &quot;idea dinner,&quot; where they predicted that the Euro's value - which already fell from $1.51 in December to $1.35 in late February - will likely reach parity with the dollar. The dinner was one of several informal dinners that New York-based research and brokerage firm Monness, Crespi, Hardt &amp; Co. holds from time to time to allow managers to network and discuss trading ideas. ...56d9809f-3a3f-4546-91b7-b7ce0ad45f6aMon, 01 Mar 2010 00:00:00 GMTDOJ Sends Strong Civil Enforcement Message with $12 Million Disgorgement Remedyhttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/DOJ-Sends-Strong-Civil-Enforcement-Message-with-12-Million-Disgorgement-Remedy
On February 22, 2010, the Antitrust Division announced a proposed consent decree under which KeySpan Corporation would be required to &quot;disgorge&quot; $12 million in profits realized as a result of an anticompetitive agreement. This marks the first time the DOJ has sought disgorgement in a civil antitrust action under the Sherman Act.1
The DOJ alleges that KeySpan, the largest supplier of electricity generating capacity in the New York City market, entered into an anticompetitive agreement that allowed KeySpan to withhold substantial capacity from that market, ultimately increasing energy prices to NYC consumers. From June 2003 through December 2005, KeySpan was able to sell almost all of its capacity in the market while bidding at its cap because of supply constraints. In 2006, anticipating an increase in market capacity, KeySpan considered acquiring Astoria, its largest competitor, but concluded that such an acquisition would raise market power issues. Instead, KeySpan acquired ...6a691f22-235e-4f3b-924b-614e83c055acTue, 19 Jan 2010 00:00:00 GMTFTC Announces New (Lower) HSR and Section 8 Thresholdshttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/FTC-Announces-New-Lower-HSR-and-Section-8-Thresholds
As if we needed any further evidence of the economic crisis of the past year, for the first time in history the Federal Trade Commission announced today that it would lower the jurisdictional thresholds applicable to both the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the &quot;HSR Act&quot;) and Section 8 of the Clayton Act. These dollar thresholds are indexed annually based on changes in the U.S. gross national product.
The HSR Act requires that certain large transactions be notified prior to their consummation. This year, the minimum size-of-transaction threshold for reporting mergers and acquisitions will decrease from $65.2 million to $63.4 million. In addition, the size-of-person thresholds, the filing fee thresholds and the thresholds applicable to certain exemptions will also decrease. These revisions will become effective thirty days after their publication in the Federal Register.
The FTC also issued revised thresholds relating to the prohibition of certain interlocking ...3e48b543-352d-497b-bc49-2c79873724daTue, 12 Jan 2010 00:00:00 GMTThird Circuit Clarifies Robinson-Patman Act's Competing Purchaser Requirement in Bid Situationshttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/Third-Circuit-Clarifies-Robinson-Patman-Acts-Competing-Purchaser-Requirement-in-Bid-Situations
In Feesers, Inc. v. Michael Foods, Inc., Nos. 09-2548, 09-2952, 09-2993 (3d Cir. Jan. 7, 2010), the Third Circuit overturned a district court finding that a manufacturer of food products discriminated in the sale of products to a food service operator customer competing with a distributor. In so doing, the Third Circuit further narrowed the scope of the Robinson-Patman Act in the context of competitive bidding situations.
The litigants operated in the food service industry, which includes three levels: manufacturers, distributors and operators. Manufacturers sell products to distributors, who resell those products to operators, which include self-operators (&quot;self-ops&quot;) and food service management companies (&quot;FSMCs&quot;). Self-ops are institutions that perform all dining services internally. FSMCs perform institutions' dining services for a fee. Michael Foods manufactured egg and potato products, which it sold to both Feesers (a distributor) and Sodexo (a FSMC). While Feesers and Sodexo operated at different levels of ...85445b83-bcc2-4845-b104-bc227ab99fd9Mon, 11 Jan 2010 00:00:00 GMTCommission Consultation on Best Practiceshttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/Commission-Consultation-on-Best-Practices
On 7 January 2010, the European Commission invited comments on three consultation documents published the same day, namely Best Practices for antitrust proceedings, Best Practices for the submission of economic evidence (both in antitrust and merger proceedings) and Guidance on the role of the Hearing Officers in the context of antitrust proceedings.
The purpose of the documents is to make it easier for companies under investigation to understand how the investigation will proceed, what they can expect from the Commission and what the Commission will expect from them. From the European Commission's perspective, formulated Best Practices are meant to enhance the transparency of investigations, while at the same time ensuring the efficiency of their investigations.
Best Practices on Antitrust Proceedings
Formulations of &quot;Best Practices&quot; usually restate the Commission's experience, policy and practice as it has evolved, but may also be used to bring about changes in its ...ca7daa42-daf7-4598-8f09-099e27741eb8Wed, 16 Dec 2009 00:00:00 GMTFederal Trade Commission Charges Intel With Anticompetitive Conduct; Commits to Expedited Administrative Trial and Decisionhttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/Federal-Trade-Commission-Charges-Intel-With-Anticompetitive-Conduct-Commits-to-Expedited-Administrative-Trial-and-Decision
After years of investigation, the FTC today joined the governmental attack on Intel's market position and behavior in microprocessors. The administrative complaint announced today alleges that Intel engaged in a &quot;course of conduct&quot; designed to preserve its x86 microprocessor monopoly position against technology advances by both AMD and Via Technologies as well as by producers of graphics microprocessors such as Nvidia. The anticompetitive conduct is alleged to include 1) making misleading statements about the market-readiness of Intel's own products, 2) offering coercive bundled pricing and tying of Intel's products resulting in below cost pricing, and 3) specifically designing Intel compiler software to degrade the performance of non-Intel chips running the software.
To address the effects of the alleged conduct, the FTC proposes a laundry list of remedies. These would include a series of provisions to limit &quot;the manner in which Intel uses threats, bundled prices, quantity discounts, and ...5dc69312-48c3-4b28-93b5-1036c74c604cMon, 07 Dec 2009 00:00:00 GMTBerlin Court of Appeals facilitates private actions for antitrust violations – excludes passing on defense for cartel membershttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/Berlin-Court-of-Appeals-facilitates-private-actions-for-antitrust-violations-excludes-passing-on-defense-for-cartel-members
On 1 October 2009, the Berlin Court of Appeals issued a judgment that may facilitate considerably damage claims for antitrust violations in Germany. The court excluded the passing on defense, which would otherwise allow a defendant to show that a claimant had passed on all or some of any cartel overcharge to its customers, and, obiter, allowed standing for indirect purchasers. It also provided mechanisms for the estimation of damages. Although the judgment is based on the predecessor of the current German legislation governing antitrust damage claims, it is anticipated that the interpretation of the current law should be no less claimant friendly given that it was introduced to facilitate damage claims. The judgment is final but the issues may be revisited by the Federal Supreme Court in other proceedings.
In detail:
On 1 October 2009, the Berlin Court of Appeals (Kammergericht, &quot;the Court&quot;) issued a judgment which ...e5e74140-5ca0-44cf-8537-f923dd5f9a97Tue, 01 Dec 2009 00:00:00 GMTJoaquin Almunia Appointed EC Competition Commissionerhttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/Joaquin-Almunia-Appointed-EC-Competition-Commissioner
On November 27, 2009, European Commission president Jose Manuel Barroso announced the nomination of Joaquin Almunia to succeed Neelie Kroes as EC Competition Commissioner. The nomination follows requests by Spain 's president Jose Luis Rodriguez Zapatero that Mr. Barroso gives the Spanish Commissioner Almunia a &quot;key&quot; economic portfolio. Mr. Barroso is said to owe Mr. Zapatero a favor for his support of Mr. Barroso's re-election in the face of opposition by the European Socialist group. Mr. Almunia's nomination, along with the nomination of the rest of the EC Commission, is expected to be confirmed after hearings before the European Parliament in January 2010. If confirmed, the new team of Commissioners will be in office beginning of February 2010.
An economist and a lawyer, Mr. Almunia has been the EC Commissioner for economic and monetary affairs since 2004. Earlier in his career, Mr. Almunia was chief economist of the ...1cfebe4e-8adb-4785-8d60-e91a10163b20Tue, 24 Nov 2009 00:00:00 GMTEuropean Commission Closes Qualcomm Investigationhttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/European-Commission-Closes-Qualcomm-Investigation
Today, the European Commission announced that it closed its investigation into Qualcomm's licensing practices of 3G mobile technology patents. In October 2007, the Commission initiated formal proceedings against Qualcomm Inc., a US chipset manufacturer and holder of IP rights in the CDMA and WCDMA standards for mobile telephony, regarding an alleged infringement of Article 82 EC (which forbids abuse of dominant position). The Commission initiated this investigation following complaints by mobile phone and chipset manufacturers Nokia, Ericsson, Broadcom, Texas Instruments, Panasonic and NEC. The WCDMA standard forms part of the 3G (third generation) standard for European mobile phone technology (also referred to as &quot;UMTS&quot;). The complaints alleged that Qualcomm's licensing practices breached Fair, Reasonable and Non-Discriminatory (&quot;FRAND&quot;) standards and therefore breached EC competition rules. The complaints also alleged that charging non-FRAND royalties would lead to higher handset prices, a slower development of the 3G standard, and a slower adoption of ...85dec0aa-2281-487e-a17d-b2e137f8c6c0Thu, 08 Oct 2009 00:00:00 GMTECJ confirms that GSK distribution arrangements must be reassessed by Commission, but overturns CFI on purpose of EU competition ruleshttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/ECJ-confirms-that-GSK-distribution-arrangements-must-be-reassessed-by-Commission-but-overturns-CFI-on-purpose-of-EU-competition-rules
On 6 October 2009 the European Court of Justice ('ECJ') confirmed the judgment of the European Court of First Instance ('CFI') that the Commission must reassess the impact of GSK's distribution arrangements in Spain, but overturned the CFI's finding that the fundamental purpose of EU competition rules is the protection of final consumers.
The case relates to GSK's agreements with wholesalers in Spain. Under these agreements, the prices paid by Spanish wholesalers varied depending on whether GSK products were resold within Spain or exported, with higher prices being paid for products exported outside Spain. In March 1998, prior to the move to compulsory self-assessment under Regulation 1/2003, GSK notified these agreements to the Commission. On 8 May 2001, the Commission found that they infringed EU rules on anti-competitive agreements because they restricted wholesalers' ability to sell products outside Spain and did not offer sufficient pro-competitive benefits to merit exemption.
...3e290f8b-b15a-427d-b136-5c2f0297b161Wed, 08 Jul 2009 00:00:00 GMTEuropean Commission Publishes Final Report in Pharmaceutical Sector Inquiry and Opens Formal Proceedings against Patent Settlementshttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/European-Commission-Publishes-Final-Report-in-Pharmaceutical-Sector-Inquiry-and-Opens-Formal-Proceedings-against-Patent-Settlements
The European Commission today published the final report in its Pharmaceutical Sector Inquiry. The Commission's findings remain largely unchanged from those in the interim report published in November last year. However, the language of the final report is less overtly critical of originator companies and the Commission's focus appears to have shifted away from the pursuit of individual antitrust cases and towards changes to the regulatory framework governing pharmaceutical markets.
In the interim report, the Commission referred to what it called a &quot;tool box&quot; of strategies used by originators to delay generic entry, including:
the creation of patent clusters;
strategic use of litigation;
interventions in national regulatory processes for authorizing generic medicines;
lifecycle management ('evergreening'); and
pay-for-delay patent ...1bd30632-2bb0-4eef-8ded-6389649d78d1Fri, 12 Jun 2009 00:00:00 GMTEuropean Commission imposes Euro 20 million fine for early implementation of a merger ('Gun-jumping')http://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/European-Commission-imposes-Euro-20-million-fine-for-early-implementation-of-a-merger-Gun-jumping
On 10 June, the European Commission imposed a Euro 20 million fine on the Belgian electricity producer Electrabel for implementing a notifiable merger without having received prior approval under the EC Merger Regulation ('ECMR').
The issue came to light when Electrabel notified its acquisition of CNR, a French electricity company, to the Commission in March 2008. The Commission cleared the acquisition, without an in-depth investigation of the substantive competition issues, in April 2008. However, it continued to investigate the date on which Electrabel first acquired control of CNR. Ultimately, it concluded that control had first been acquired in December 2003, when Electrabel acquired a tranche of shares from a third electricity producer, EDF of France. Although Electrabel's shareholding in CNR remained just below 50%, it obtained an effective majority of votes at CNR's shareholders' meetings based on past attendance rates. In addition, Electrabel became the only industrial shareholder in ...2d99b262-6ce2-42b8-a58a-ef89906769ffFri, 29 May 2009 00:00:00 GMTBelgian Competition Council shows its teeth and levies a 66,3 million Euro finehttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/Belgian-Competition-Council-shows-its-teeth-and-levies-a-66-3-million-Euro-fine
On May 26, 2009, the Belgian competition Council fined Proximus, the incumbent Belgian wireless communications provider, a record 66,3 million Euro for abuse of dominance.
Closing an investigation that started in 2005 following a complaint by competitor Base and a dawn raid of the Proximus headquarters in 2006, the Council ruled that between 2004 and 2005 Proximus had abused its dominant position on the Belgian wireless communication markets. The abuse consisted in a so-called margin-squeeze.
More particularly, the Council decided that Proximus had abused its dominant position because during the relevant period, the prices for on-net calls charged to Proximus' professional customers were lower than the mobile termination rates charged to its competitors1. The Council stated that &quot;Since the mobile termination charges of Proximus were higher than the charges for its own on-net communications, its competitors were unable to propose prices to their clients for communications ...0e29148b-5979-404b-9cda-1cdae6ef002dThu, 14 May 2009 00:00:00 GMTEuropean Commission imposes record € 1.06 billion antitrust fine on Intelhttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/European-Commission-imposes-record-106-billion-antitrust-fine-on-Intel
The European Commission yesterday fined Intel &euro; 1.06 billion (around US$ 1.4 billion) for abuse of its dominant position in certain CPU computer chips (x86 CPUs) between 2002 and 2007. This exceeds the previous record fine for anticompetitive behavior of &euro; 896 imposed last year on Saint Gobain for its participation in the car glass cartel as well as the fine of &euro; 899 imposed last year on Microsoft for non-compliance with the Commission abuse decision.
The Commission made two findings of abuse against Intel:
first that it granted hidden rebates to computer manufacturers on condition that they obtain all or almost all of their x86 chip requirements from Intel, and paid a major retailer (Media Markt) to stock only Intel-based computers; and
second ...64ed4015-7b3d-40c8-9df1-c6f1330053d2Wed, 25 Mar 2009 00:00:00 GMTSecond domestic sales threshold for German merger control in force todayhttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/Second-domestic-sales-threshold-for-German-merger-control-in-force-today
Today, 25 March 2009, an amendment to the German Act against Restraints of Competition entered into force (the day after its publication in Germany&rsquo;s Official Journal). The amendment introduces a second domestic sales threshold for German merger control.
The new threshold requires that at least two parties to a transaction must each have individual sales in Germany of &euro; 5 million (approx. US$ 6.77 million) or more. In addition, as before, the parties to the transaction must have combined worldwide sales of more than &euro; 500 million and at least one of them must have sales in Germany of more than &euro; 25 million.
The amendment applies to all concentrations, i.e. mergers, acquisitions and joint ventures, that have not been completed prior to its entry into force. Thus, mergers for which an agreement has already been signed but have not yet been completed need not be notified if ...a341af4f-5855-4009-9059-2cdd9d2a3954Mon, 09 Mar 2009 00:00:00 GMTFTC, Whole Foods Reach Agreement on Wild Oats Acquisitionhttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/FTC-Whole-Foods-Reach-Agreement-on-Wild-Oats-Acquisition
The FTC has settled one of the most contentious merger challenges in recent history by reaching an agreement with Whole Foods Market Inc., allowing it to partially &quot;unscramble the eggs&quot; of Whole Foods's consummated merger with Wild Oats. Under that agreement, Whole Foods will divest 31 former Wild Oats locations (and one Whole Foods location), along with the Wild Oats brand and associated intellectual property. The settlement signals the FTC's willingness to compromise and seek a practical resolution, despite recent litigation momentum favoring the FTC.
The settlement, announced on March 6, calls for the assets in question to be put immediately into the hands of a divestiture trustee, who will be responsible for finding an acceptable buyer or buyers. The settlement caps nearly two years of litigation over the $565 million transaction, first announced in February 2007. In June 2007, the FTC sought, and won, a temporary restraining order ...aea4bbd4-2cd4-4106-97a2-1f87618f275dWed, 04 Mar 2009 00:00:00 GMTNew FTC Settlement with Music Industry Trade Association Provides Important Guidance For Associations That Conduct Industry-Wide Meetingshttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/New-FTC-Settlement-with-Music-Industry-Trade-Association-Provides-Important-Guidance-For-Associations-That-Conduct-Industry-Wide-Meetings
On March 4, 2009, the Federal Trade Commission issued a consent order to settle charges that the National Association of Music Merchants (NAMM) violated Section 5 of the FTC Act by facilitating manufacturers' discussions of minimum advertised pricing (MAP) policies and related strategies. The FTC focused almost entirely on the association's role in &quot;selecting moderators and setting the agenda&quot; for association meetings that addressed the topic of minimum resale price maintenance in the musical instrument industry. The FTC's focus on the role of the association, and the remedies sought by the FTC, provide important new guidance for associations and requirements for association antitrust compliance programs. Associations that hold industry-wide meetings should review their antitrust compliance policies and update them in light of this order.
NAMM, a 9,000-member trade association for music manufacturers, distributors and dealers, was accused by the FTC of organizing meetings and other programs at which members ...8c219abe-ac61-4378-a4cf-76de38479d16Wed, 18 Feb 2009 00:00:00 GMTGermany introduces second domestic turnover threshold for merger controlhttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/Germany-introduces-second-domestic-turnover-threshold-for-merger-control
On 13 February 2009, the German legislator approved an amendment to the Act against Restraints of Competition (&quot;ARC&quot;) that will significantly reduce the need for merger control filings and observation of the statutory waiting period for transactions with focus outside Germany.
Presently, the German turnover thresholds are met if the parties' combined worldwide turnover in the last calendar year exceeds &euro; 500 million (approx. US$ 735 million) and if any of the parties achieves sales in Germany in excess of &euro; 25 million (approx. US$ 36.7 million). Accordingly, Germany has been one of the few countries in the world where the filing thresholds could be triggered by one of the parties, e.g. the acquiring group alone. Furthermore, the extensive interpretation of the required 'effects on competition in Germany' has hitherto put a significant administrative burden on many companies meeting the abovementioned thresholds.
Under the new regime two ...062ac999-ff9d-4583-809b-80527f5a8dccMon, 15 Dec 2008 00:00:00 GMTGerman competition authority imposes high fine for 'gun-jumping'http://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/German-competition-authority-imposes-high-fine-for-gun-jumping
Today the Bundeskartellamt (&quot;FCO&quot;) has fined a US-based company EUR 4.5 million for 'gun-jumping' in Germany. This is the highest fine ever imposed by the FCO for implementing a transaction before clearance and as such appears to be in line with the tougher stance competition authorities in Europe are prepared to take for infringements of procedural law.
Pursuant to Section 41(1) of the Act Against Restraints of Competition (&quot;ARC&quot;), concentrations which meet the turnover thresholds laid down in Section 35 ARC, and which are thus subject to the notification requirement under Section 39 ARC, may not be implemented prior to the approval of the FCO. Thus, the German notification requirement, like the US HSR requirement, is &quot;suspensory&quot;, and effecting control over the target before the approval of the FCO constitutes gun jumping. According to Section 81(2) para. 1 ARC, such gun jumping is subject to a fine of up ...7d9ccb90-e1b8-4157-b832-964376b58e88Fri, 05 Dec 2008 00:00:00 GMTEU Antitrust: European Commission issues its guidance paper on the application of Art. 82 EC Treaty to exclusionary abuseshttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/EU-Antitrust-European-Commission-issues-its-guidance-paper-on-the-application-of-Art-82-EC-Treaty-to-exclusionary-abuses
On Wednesday 3 December 2008, the European Commission issued the long awaited guidance paper on abuse of a dominant market position in exclusionary cases. The paper provides guidance on the economic and effect-based approach the Commission intends to use when assessing abuse of dominance cases. The scope of the paper is limited to exclusionary abuses. It does not cover so-called exploitative abuses.
The paper follows three years of review and consultation on the Commission's approach to the enforcement of Article 82. The review process started with the publication in 2005 of the Commission Staff Discussion Paper on exclusionary abuses which was followed by a lengthy consultation process and a public hearing in June 2006.
The new guidance paper describes the legal and economic principles the Commission will follow when dealing with certain types of exclusionary abuses, in particular exclusive purchasing, conditional rebates, tying and bundling, predation, ...3c93e45b-6116-4135-a6d8-6377f03087d8Wed, 26 Nov 2008 00:00:00 GMTEU Antitrust: Raids on Pharma Companies and E.ON Divestments http://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/EU-Antitrust-Raids-on-Pharma-Companies-and-EON-Divestments
EU Commission raids pharma companies days before sector inquiry interim report
The European Commission has confirmed that it conducted antitrust dawn raids at the offices of several pharmaceutical companies in Europe on November 24. The raids come four days before publication of the interim report in the Commission&rsquo;s pharmaceuticals sector inquiry investigating competition issues in the industry. Press reports have identified both generic and originator companies as targets of the raids.
The Commission has said that the latest raids are not part of the sector inquiry and are not linked to the earlier raids that launched the inquiry on January 15. However, knowledge acquired during the inquiry has, it said, allowed it to &ldquo;draw conclusions on where Commission action based on competition law could be appropriate and effective&rdquo;.
The Commission&rsquo;s press release confirming the raids is available by clicking here: Antitrust: Commission confirms unannounced inspections ...375daf60-206c-4576-9aab-ebdaca6b86dcThu, 23 Oct 2008 00:00:00 GMTEuropean Commission revises Remedies Notice and amends Merger Implementing Regulationhttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/European-Commission-revises-Remedies-Notice-and-amends-Merger-Implementing-Regulation
On 22 October the European Commission has published the long awaited revised notice on remedies acceptable under the EC Merger Regulation (&quot;Revised Notice&quot;) as well as corresponding amendments of the merger implementing regulation. The Revised Notice comes after a series of decisions by the European courts and an extensive study on the effective design and implementation of merger remedies in Commission cases (&quot;Remedies Study&quot;). It further follows a public consultation that was held on the basis of a draft notice in 2007.
The main changes of the reform include the introduction of a form for submitting information on remedies in the merger procedure (&quot;Form RM&quot;), clarifications on the burden of proof, detailed guidance on various kinds of remedies and several substantive criteria as well as clarification on the role of the trustee. The Revised Notice has been inflated to more than double the size of its predecessor from 2001 ...e6845b2b-644e-4e15-b054-3bfd22fff45bTue, 16 Sep 2008 00:00:00 GMTECJ Allows Dominant Pharmaceutical Manufacturers Refusal To Supply In Order To Defend Legitimate Commercial Interestshttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/ECJ-Allows-Dominant-Pharmaceutical-Manufacturers-Refusal-To-Supply-In-Order-To-Defend-Legitimate-Commercial-Interests
While in 2005 the European Court of Justice (&quot;ECJ&quot;) (Case C-53/03 - Syfait and others v. GlaxoSmithKline) refused to rule on the application of Art. 82 EC to supply quota systems because the referring Greek competition authority was not found to be a court within the meaning of Art. 234 EC, the ECJ held today (Joined Cases C-468/06 to C-478/06 - Sot. Lelos and others v. GlaxoSmithKline) that a pharmaceutical company would not abuse its dominant position, if &quot;the refusal [&hellip;] to supply wholesalers involved in parallel exports constitutes a reasonable and proportionate measure in relation to the threat that those exports represent to its legitimate commercial interests [&hellip;]&quot; (para. 70). Should a dominant pharmaceutical company, however, refuse to meet &quot;ordinary&quot; orders from a wholesaler, it is abusing its dominant position (para. 77). According to the ECJ, the crucial factors to determine whether a wholesaler is ordering &quot;ordinary&quot; orders are:
...28f4ab9f-9ebe-4e00-8d5d-e35e23a19ab3Mon, 08 Sep 2008 00:00:00 GMTHigh Noon: DOJ and FTC Shootout Over Report on Single Firm Conducthttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/High-Noon-DOJ-and-FTC-Shootout-Over-Report-on-Single-Firm-Conduct
In the waning days of the Bush Administration, as many are focused on what the future may hold for antitrust enforcement, the normally cordial relations between the FTC and the Justice Department erupted into a full fledged fight over the future of Section 2 enforcement. The FTC and DOJ today released statements revealing not only significant differences between the way the two agencies currently view unilateral, potentially monopolistic conduct, but quite possibly a glimpse of what is to come in the next administration regardless of who wins the presidency.
Today's fireworks have their roots in the joint DOJ/FTC hearings held in 2006 and 2007, in which the agencies heard from eminent professors, practitioners, and businesspeople as a basis to articulate a future course for enforcement of cases involving single firm conduct. Ultimately, the two agencies could not agree on that course, leaving considerable uncertainty for firms trying to comply ...da6f48de-2f4b-4b03-b862-640a380f1b76Thu, 31 Jul 2008 00:00:00 GMTFTC Wins Reversal in Whole Foodshttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/FTC-Wins-Reversal-in-Whole-Foods
D.C. Circuit Opinion Will Energize FTC's Ability to Block Mergers
What a difference a year makes. After losing all of its litigated merger challenges in 2007 (Peoples Natural Gas; Western Refining; Whole Foods), 2008 has yielded significant wins for the FTC. Through a decidedly more strategic procedural attack on proposed transactions, the Commission trumped two highly publicized deals. Earlier this year, the FTC launched a double-pronged approach against the Inova hospital merger, moving ahead with administrative proceedings while a preliminary injunction (&quot;PI&quot;) was pending in federal court. (The parties ended up abandoning the deal without even waiting for the PI hearing to be held.) Now, months after Whole Foods and Wild Oats consummated their merger, the D.C. Circuit resuscitated the FTC's argument that injunctive relief is appropriate to stop a deal.
As some background, Whole Foods first announced its plan to buy smaller rival Wild Oats ...b4164128-0566-4d43-a969-101af0305950Thu, 24 Jul 2008 00:00:00 GMTThe FTC Examines Green Claims for Textiles and Buildingshttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/The-FTC-Examines-Green-Claims-for-Textiles-and-Buildings
On July 15, the Federal Trade Commission (&quot;FTC&quot;) held the third installment of its &quot;Eco in the Market&quot; workshop series designed to help the FTC review and revise its Guides for the Use of Environmental Marketing Claims (&quot;Green Guides&quot; or &quot;Guides&quot;). The Green Guides were originally promulgated in 1992 and revised in 1998 to help producers promote the green qualities of their products without misleading consumers and running afoul of Section 5 of the FTC Act. Since 1998, consumer interest in sustainability, global warming, and the environment has exploded and industry is developing innovative &quot;green&quot; initiatives, prompting the FTC to revisit the Guides.
The July 15 workshop focused on environmental marketing claims about textiles and buildings, including construction materials and real estate marketing. The textile panels examined how consumers perceive the dramatic increase in green claims for clothing and home d&eacute;cor made from recycled fibers and naturally sourced fibers ...bf704a70-bff8-4937-bb20-97d0c1cd1592Fri, 11 Jul 2008 00:00:00 GMTEuropean Court Issues Landmark Judgment on Mergers in Concentrated Marketshttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/European-Court-Issues-Landmark-Judgment-on-Mergers-in-Concentrated-Markets
Court of First Instance told to reassess the Commission's clearance of the Sony/BMG joint venture
Two years ago, the EU Court of First Instance (CFI) stunned commentators, the parties and the European Commission by overturning the Commission's decision to clear a joint venture combining the recorded music businesses of Sony and Bertelsmann (BMG). In doing so, the CFI reduced the level of evidence needed to block a merger on coordinated effects grounds &ndash; i.e. in concentrated markets where there is no single dominant player post-merger &ndash; threatening to significantly increase the number of mergers blocked under EU law.
On July 10, 2008, the European Court of Justice (ECJ) set aside the CFI's judgment, re-establishing a high evidential burden in coordinated effects cases. In the key passages of the judgment, the ECJ emphasizes the need to avoid a check-list approach to the assessment of coordinated effects and to ...d853453e-2b50-404d-a2fe-9022ab06a42aWed, 09 Jul 2008 00:00:00 GMTConsultancy Firms Contributing to Implementation of Cartel Subject to Fineshttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/Consultancy-Firms-Contributing-to-Implementation-of-Cartel-Subject-to-Fines
In its landmark judgment of 8 July 2008, the Court of First Instance (CFI) confirmed a Commission decision finding that a consultancy firm which has contributed to the implementation of a cartel, even without being active on the relevant market, may be fined for complicity under Article 81(1) of the EC Treaty.
In its decision of 10 December 2003, the Commission found that Atofina, Peroxid Chemie, Laporte and Perorsa, European producers of organic peroxides, had infringed the competition rules by fixing prices, agreeing on and implementing a mechanism for price increases, allocating customers and setting up a system to monitor and enforce their agreements. For these reasons, the Commission imposed on the companies fines of nearly &euro; 70 million.
Besides the producers, the Commission held that AC Treuhand AG, a Swiss consultancy firm which provided the cartel members with various services such as organizing meetings, providing logistical assistance ...976aec38-eac7-4000-bae8-a05a1e6c2be7Mon, 30 Jun 2008 00:00:00 GMTEuropean Commission Introduces New Settlement Procedure for Cartel Caseshttp://www.crowell.com/NewsEvents/AlertsNewsletters/Antitrust-Law-Alert/European-Commission-Introduces-New-Settlement-Procedure-for-Cartel-Cases
The European Commission today introduced a new settlement procedure for cartel cases, under which the parties that acknowledge their participation in a cartel may obtain a 10% reduction in fines. This procedure is intended to simplify the Commission&rsquo;s administrative processes, freeing up resources so that it can pursue new cases. It may also reduce the number of appeals to the European Courts in cartel cases.
Parties do not automatically have a right to settlement under the new process, and the Commission will have full discretion to determine whether a case is suitable for settlement. Nor will the Commission negotiate the use of evidence or the appropriate sanction. The Commission will inform the parties of its case and the supporting evidence. Parties will then have to indicate whether they wish to pursue a settlement. In order to settle, parties will have to acknowledge the scope and duration of the cartel ...